I•CON
Volume 22 Issue 1
Table of Contents
Letters to the Editors
Zhaoxin Jiang, A constitutional court’s survival (by any name)
Ming-Sung Kuo, The “constitutional court of China”? Setting the record straight
Zhaoxin Jiang, State-centered liberal constitutionalism: An underappreciated legacy of “China’s Constitutional Court”
Editorial: In this issue; The human ChatGPT—The use and abuse of research assistants
I•CON Foreword
Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto Rudolphy, Gender and the legal academy
Articles
Leena Grover, Out of the shadows: Illuminating the distinctiveness and exceptional use of interim constitutions
Pau Bossacoma Busquets, Secession from and secession within the European Union: Toward a holistic theory of secession
Mauro Arturo Rivera León, Control and paralysis? A context-sensitive analysis of objections to supermajorities in constitutional adjudication
Nicola Tommasini, Judicial self-empowerment and unconstitutional constitutional amendments
I•CON: Debate!
Eoin Carolan and Seána Glennon, The consensus-clarifying role of deliberative mini-publics in constitutional amendment: A reply to Oran Doyle and Rachael Walsh
Oran Doyle and Rachael Walsh, Assessing the influence and legitimacy of citizen deliberation on abortion: A rejoinder to Eoin Carolan and Seána Glennon
Review Essays
Ming-Sung Kuo, (Political) political liberalism and the constitutional project. Review of Frank Michelman & Alessandro Ferrara. Legitimation by Constitution: A Dialogue on Political Liberalism
Cristina E. Parau, The philanthropic privatization of supranational justice? Review of Gaëtan Cliquennois. European Human Rights Justice and Privatisation: The Growing Influence of Foreign Private Funds
Book Reviews
Antoine Parry, Review ofSara Iglesias Sánchez & Maribel González Pascual (eds). Fundamental Rights in the EU Area of Freedom, Security and Justice
Anya Bernstein, Review of Paul Daly. Understanding Administrative Law in the Common Law World
Sonia Boulos, Review of Michael Karayanni. A Multicultural Entrapment: Religion and State Among the Palestinian-Arabs in Israel
ABSTRACTS
Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto Rudolphy, Gender and the legal academy
This Foreword examines what we describe as a “gender gap” in the legal academy. The gap can be seen most clearly in the significantly lower proportion of tenured women faculty members than of men faculty members in most parts of the world, but it is evident in many other aspects too, including the fact that women in academia are often clustered in a “pink ghetto” with lower pay, status, and job security. We begin by outlining the nature of the academic gender gap and some of the obstacles to its removal or reduction, before considering the reasons this gap should be a matter for concern. Two kinds of reasons for such concern are offered: consequences-based and justice-based. The Foreword concludes by suggesting a number of ways in which the gender gap might be addressed, arguing for attention to be paid to the risk of pursuing apparent solutions which may have the effect of entrenching or exacerbating aspects of the problem. Ultimately, we argue that what is needed is not just a larger proportion of women in law schools, but a more just and feminist legal academy along multiple intersecting dimensions.
Leena Grover, Out of the shadows: Illuminating the distinctiveness and exceptional use of interim constitutions
Around the world, interim (temporary) constitutions are enacted as bridges to peace and democracy, expected to deliver fragile societies from conflict and authoritarian rule. Despite their growing use in recent years, their legal examination has to date largely been relegated to liminal spaces in existing bodies of scholarship, which variously conceive of them as constitutions, peace agreements, hybrid constitution-peace agreements, and procedural options in constitution- and peace-building efforts. Are these four understandings accurate and, if not, what do they miss? This article highlights all (proto-)interim constitutions enacted since 1789—more than 150 of them—as well as the historic events that prompted their enactment. It is argued that interim constitutions possess a combination of features that render them legally distinct from other constitutional instruments, as well as peace agreements. It is further demonstrated that interim constitutions are consistently enacted in the context of exceptional factual and legal circumstances, thereby disrupting ten assumptions in the state of art regarding their purposes and optional use. It is concluded that understanding the legal distinctiveness and exceptional use of interim constitutions is essential for understanding what they are, why they are enacted, and whether they perform “successfully.”
Pau Bossacoma Busquets, Secession from and secession within the European Union: Toward a holistic theory of secession
After presenting some convergent tendencies and eclectic approaches to moral theories of secession in light of some practical application of these theories, the article outlines the constitutional landscape on the regulation of secession and analyzes the legal right to withdraw from the European Union, arguing that this right to secede from the Union helps to justify a right to secede from EU member states. Through the exploration of several arguments that may distinguish between these rights of exit, the article contends that their regulation and qualification should not be substantially different from one another. Taking a holistic approach, the article defends a qualified right to secede from the European Union as a whole and from its individual member states.
Mauro Arturo Rivera León, Control and paralysis? A context-sensitive analysis of objections to supermajorities in constitutional adjudication
Supermajorities in judicial review are present in several countries, including the United States (at the state level), Mexico, Peru, the Czech Republic, Chile, and South Korea. Despite their prevalence, the theoretical legitimacy of supermajorities has been a topic of intense debate since the early twenty-first century. A notable gap exists between this theoretical discourse and empirical research that examines the supermajority models in practice. This article endeavors to bridge this gap. Focusing on two important concerns raised in comparative scholarship—namely that supermajorities might enable political branches to control the court through select appointments, and they could potentially paralyze constitutional courts—this article offers a nuanced examination of the Mexican scenario. It argues that specific mechanisms governing judicial appointments, such as staggered terms and pluralistic appointments, can effectively mitigate the risk of court control in supermajority settings. Furthermore, a thorough assessment of an ad hoc dataset on decisions in which the supermajority was applicable suggests that these majorities do not paralyze the court.
Nicola Tommasini, Judicial self-empowerment and unconstitutional constitutional amendments
In the context of global judicial aggrandizement, many courts have developed and accepted the unconstitutional constitutional amendments doctrine. However, with the exception of some case studies, there is little comparative scholarship on the causes of judicial expansion in this area. This article addresses this gap by examining the development of the power to review amendments in three constitutional systems: Colombia, India, and Malaysia. The article argues that in all three cases, one of the important elements that contributed to the consolidation of this power is the strategic behavior of courts. To understand the importance of strategy, the article suggests a rational choice theory of judicial empowerment, according to which judges estimate the costs of potential backlashes and act in certain moments and in certain ways so as to make political reaction unlikely. It further suggests three different types of strategies utilized by these courts that helped curb political backlash. First, courts engaged in timing strategies: they decided the scope of their own power when political competition was high, and the likelihood of backlash was low. Second, courts engaged in outcome strategies: they expanded their own power while simultaneously giving the dominant political coalition a “win.” Third, courts employed case selection strategies: they picked mundane and low-stake cases in order to decrease the incentives for political reaction. The article concludes with some considerations on the limits of judicial strategy.
Eoin Carolan and Seána Glennon, The consensus-clarifying role of deliberative mini-publics in constitutional amendment: A reply to Oran Doyle and Rachael Walsh
Oran Doyle and Rachael Walsh’s article, “Constitutional Amendment and Public Will Formation: Deliberative Mini-Publics as a Tool for Consensus Democracy” is a welcome addition to the literature on Ireland’s efforts to integrate deliberative citizen-involved structures into its constitutional amendment process. We agree that the Citizens’ Assembly on abortion played a role in shaping the legal position that ultimately emerged in Irish law; we disagree, however, with the authors’ account of how that occurred. In particular, we do not believe the Irish experience supports the claim that deliberative mini-publics help to build the consensus for constitutional amendment. On the contrary, on each occasion where amendment processes incorporating a deliberative element have succeeded in Ireland, there has been clear evidence of an enduring pre-existing public consensus over the core of the amendment proposed. We suggest that the potential value of deliberative mini-publics might more accurately be seen as one of consensus-clarifying rather than consensus-building. While a mini-public may be unlikely to create a novel constitutional consensus, it can have a significant—potentially causal—role in converting a general and disparate desire for change into a specific form. That, in our view, is what occurred with the repeal and replacement of Ireland’s constitutional position on abortion. We argue that a careful analysis of the process provides tangible evidence that the Assembly affected the outcome in clear and specific ways: its significant impact was not creating a constitutional consensus that had previously been absent, but rather, we argue, in putting on the agenda, and coalescing support around, a specific form of legal change.
Oran Doyle and Rachael Walsh, Assessing the influence and legitimacy of citizen deliberation on abortion: A rejoinder to Eoin Carolan and Seána Glennon
This article responds to the two key arguments presented by Eoin Carolan and Seána Glennon in their reply to our article: that the Citizens’ Assembly on abortion had a “consensus-clarifying” function rather than a “consensus-building” function in respect of the Irish constitutional amendment on abortion in 2018; and that participation in deliberative mini-publics should be compulsory, like jury service. We argue that the distinction drawn by Carolan and Glennon does not assist in understanding constitutional amendment processes, as the consensus required for a constitutional amendment must be fully formed, in respect of a specific amendment. We contend that the Irish Citizens’ Assembly assisted the formulation of that consensus in respect of abortion reform in Ireland. We argue that compulsory participation risks distorting the discursive environment that is essential to an effective and legitimate deliberative mini-public, and could fail to ensure the desired representativeness if exceptions to participation were allowed in certain circumstances.
Ming-Sung Kuo, (Political) political liberalism and the constitutional project. Review of Frank Michelman & Alessandro Ferrara. Legitimation by Constitution: A Dialogue on Political Liberalism
This review essay follows Alessandro Ferrara and Frank Michelman’s dialogic journey into the legitimation-by-constitution idea, which they submit as the institutional expression of political liberalism in Legitimation by Constitution: A Dialogue on Political Liberalism, to illustrate the challenges for contemporary philosophy of political liberalism in its transposition to the constitutional project. It argues that Ferrara and Michelman’s liberal endeavor to answer the fundamental questions surrounding political liberalism rests on a normative conception of identity, which eventually leads them to a dilemma: the project of constitutional democracy they defend and justify is sustained by a liberal ethos, while it is tasked to accommodate those who do not value the liberal form of life. Instead of choosing between the project of constitutional democracy and their liberal soul, Ferrara and Michelman eventually offer a thin constitutional account of political liberalism resembling the international legal order amidst the retrenchment of the liberal ethos. It contends that what liberal democracies need from political liberalism in battling antiliberal forces is not more political philosophy but rather something akin to what Jeremy Waldron calls “political political theory.” It is suggested that political liberalism take a political turn to confront antiliberal forces with an enriched rather than diluted constitutional project.
Cristina E. Parau, The philanthropic privatization of supranational justice? Review of Gaëtan Cliquennois. European Human Rights Justice and Privatisation: The Growing Influence of Foreign Private Funds
In European Human Rights Justice and Privatisation, Gaëtan Cliquennois illustrates how a handful of tax-exempt philanthropic foundations, predominantly American, have redefined European courts to further their commercial agenda. Foundations such as the Open Society and Ford Foundation finance activist non-governmental organizations to carry out litigation that promotes the philanthropies’ preferred policy objectives, notably exemplified by systematic disregard for socio-economic human rights, which conflict with neoliberal principles. This review essay suggests that a deeper understanding of these dynamics can be achieved by moving beyond the philanthropic facade to view these benefactors not merely as neoliberals exploiting tax breaks for their lobbying activities, but more broadly as oligopolists converting their immense wealth into considerable non-majoritarian political power. Cliquennois’s findings reveal a situation less reminiscent of a “new Cold War” in lawfare, as he puts it, indicating a balanced contest, but rather a comprehensive Kulturkampf weaponizing supranational courts to undermine traditional Christian values and national sovereignty. Cliquennois encourages us to scrutinize the genuine philanthropic nature of these organizations, and, importantly, to assess their real effect on human rights, democracy, and the rule of law.
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