I•CON
Volume 23 Issue 1
Table of Contents
Editorial: In this issue; Guest Editorial: Making gender equality visible in judicial selections at the European Court of Justice
I•CON Foreword
Nehal Bhuta, Social rights and the origins of the social constitution: From collective natural rights to the social state
Articles
Holning Lau, Decriminalizing same-sex sexual activity: Jurisprudence from the Global South
Damian Cueni, Basic rights and costs in political value: The expressive point of the two-step framework
Yoomin Won, Emergency powers and COVID-19 derogations
Symposium – Chief Justices and Democratic Resilience: Judicial Leadership in Times of Constitutional Crisis
Erin F. Delaney, Rosalind Dixon and David Kosař, Chief justices and democratic resilience. Judicial leadership in times of constitutional crisis
Rehan Abeyratne and Surbhi Karwa, The Institutional failings of India’s Chief Justice in the age of Modi
Yaniv Roznai and Shani Shnitzer, Navigating the judicial ship through stormy waters: President Esther Hayut and the Israeli constitutional crises, 2018—2023
Theunis Roux and Sinethemba Memela, The chief justice chosen by God to save South African democracy: Explaining Mogoeng Mogoeng’s unexpectedly successful tenure
Andrea Pozas-Loyo and Julio Ríos-Figueroa, The double-edged sword of judicial corporatism: Mexico’s chief justice in periods of constitutional stress
Victoria Miyandazi and Duncan M. Okubasu, Judiciary chiefs in hybrid regimes: Kenya
Daniel Bogéa and Lívia Guimarães, Rotating chief justices in a democracy under stress: The Brazilian Supremo Tribunal Federal under Bolsonaro
David Kosař and Katarína Šipulová, Judicial empowerment of chief justices in Central Europe through supranational means – Judicial self-defense or judicial self-dealing?
Julius Yam and Cora Chan, Oratory leadership of chief justices in post-handover Hong Kong
Book Reviews
Gavin Phillipson, Review of Richard Johnson & Yuan Yi Zhu, eds., Sceptical Perspectives on the Changing Constitution of the United Kingdom
Prerna Dhoop, Review of Swati Jhaveri, Tarunabh Khaitan & Dinesha Samararatne, eds., Constitutional Resilience in South Asia
Katarzyna Krzyżanowska, Review of Kriszta Kovács, ed. The Jurisprudence of Particularism: National Identity Claims in Central Europe
Rosalind Dixon, Review of Julie C. Suk. After Misogyny: How the Law Fails Women and What to Do about It
ABSTRACTS
Nehal Bhuta, Social rights and the origins of the social constitution: From collective natural rights to the social state
This Foreword revisits the commonly understood origin story of social rights and the social constitution. It challenges the common thesis that social rights were a conceptual by-product of the rise of the welfare state. Instead, it argues that, in the nineteenth century, social rights—which have longer and deeper historical lineages than previously recognized—became a compelling register through which a new imaginary of a social state was constructed. It argues that social rights ideas emerged as “collective natural rights” and were used to articulate a concept of the state as a public power that represented the interests of the whole of society, not just the propertied, and to assert the state’s purpose in upholding the equal right of all to a fair share of the wealth produced by the social whole. For this reason, social rights played a distinctive role in the articulation of the transformative ambitions of revolutionary movements and post-colonial states. This Foreword concludes that recovering this historical understanding of social rights and the social constitution is valuable, and potentially useful, in an epoch of galloping inequality, intensifying concentrations of private wealth and power, and downward social mobility for many.
Holning Lau, Decriminalizing same-sex sexual activity: Jurisprudence from the Global South
This article contends that the Global South’s jurisprudence on decriminalizing same-sex sexual intimacy has distinctive features that are missing from the Global North’s jurisprudence. In this article, I examine decriminalization cases from courts in Belize, Botswana, India, Fiji, South Africa, and Trinidad and Tobago, as well as cases from the Eastern Caribbean Supreme Court and the Inter-American Commission on Human Rights. I juxtapose these cases with canonical cases from the Global North—namely, cases from the United States and the European Court of Human Rights (ECtHR). This analysis reveals four distinctive features of the Global South’s jurisprudence. First, many of the Global South’s judicial opinions traced sodomy bans to their colonial origins and framed their repudiation of the bans as an act of anticolonialism. Second, compared with cases from the United States and the ECtHR, the Global South’s cases often identified a broader set of rights violations. The ECtHR and US decisions were based on rights to privacy or liberty. In contrast, many of the Global South’s judgments went further, expounding on why sodomy bans violate other rights, including rights to health, substantive equality, and freedom of expression. Third, certain Global South cases innovated the notion of “constitutional morality” in adjudication. Fourth, compared with the cases from the United States and the ECtHR, many of the Global South’s judgments spoke more emphatically about protecting sexual minorities out of a respect for difference and pluralism. This article discusses these jurisprudential innovations’ significance to ongoing debates and future research concerning LGBTQ rights.
Damian Cueni, Basic rights and costs in political value: The expressive point of the two-step framework
Within the two-step framework of basic rights adjudication, the first step asks whether the scope of a right has been infringed, and the second step looks at the justification for the infringement to assess whether a right was violated. Many scholars have offered theoretical accounts of the second, “justification,” stage, but there is widespread puzzlement about the practical point of the first, “scope,” stage. Against calls to either radically narrow or broaden the scope of basic rights, this article presents an account of the first stage that suggests a more moderate approach to the scope of basic rights and makes sense of its distinct normative significance. Drawing on Bernard Williams’s work on conflicts between liberty and equality, this article develops a novel understanding of “costs in political value” and argues that the expressive point of the two-step framework is to acknowledge and respect particularly grievous costs in political value. The doctrinal judgment that there has been a “basic rights infringement” is meant to express such acknowledgment and respect, even if these costs can be justified and there is no “basic rights violation.” This article offers practical guidance for thinking about inclusions and exclusions from the scope of basic rights and illustrates how the two-step framework mediates between legal and political discourse.
Yoomin Won, Emergency powers and COVID-19 derogations
Confronted with COVID-19, states have taken emergency measures derogating from human rights obligations. With the pandemic now declared over, it is time to review state practice and the derogation systems under international human rights treaties. This article examines all 373 notifications sent from states to the treaty organs of three treaties: the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the American Convention on Human Rights (ACHR) from January 2020 until May 2023. The dataset shows three major observations of diversity in state practice: extensions of derogation, domestic legal basis of emergency measures, and divergence in regional practice. First, the length of derogation periods shows wide variance. States have made different decisions on the duration of derogations. Second, state practice on notification varied depending on the domestic legal system of emergency controls. Many states have equated derogation from international human rights obligations with their own constitutional emergency provisions. Lastly, there was a regional divide in practice. Eastern European and Latin American states, which have experienced democratic backsliding in recent years, were much more active in submitting notifications than those in other regions. Asian and African countries did not actively notify international treaty systems. Several factors may explain this, including the existence of regional human rights systems, past experience of abuse of power, and different designs of constitutional emergency powers. The types of emergencies and legal methods of control have evolved. So too should the derogation systems to ensure the international monitoring system remains effective even in times of crisis.
Rehan Abeyratne and Surbhi Karwa, The Institutional failings of India’s Chief Justice in the age of Modi
The Chief Justice of India (CJI) wields substantial institutional authority. He determines the composition of judicial benches at the Supreme Court of India, allocates cases to each bench, and plays a leading role in appointing new judges to the higher judiciary. These powers are not subject to structural or legal constraints. Rather, it is left to the discretion of individual CJIs to wield these powers at their discretion. As India’s constitutional democracy has come under severe strain under the government of Prime Minister Narendra Modi, the CJI’s broad powers might have been used to constrain democratic decline. However, as we argue in this Article, successive CJIs have misused their discretion to accelerate rather than impede Modi’s illiberal agenda. We show how the office of the CJI has substantially contributed to multiple crises within the Supreme Court that have left the institution damaged and vulnerable to capture by the government.
Yaniv Roznai and Shani Shnitzer, Navigating the judicial ship through stormy waters: President Esther Hayut and the Israeli constitutional crises, 2018—2023
Attacks on the Supreme Court of Israel are neither new nor rare, but the rolling series of constitutional crises that Israel has been enduring is unprecedented. In recent years, the populist movement has been eroding Israeli democratic order, and Israel has seen constant clashes between the executive and the legislature (which, to a great extent, can be viewed as one authority rather than two separate ones) on one side, and the Court on the other. In this Article, we examine Justice Esther Hayut’s tenure as president of the Supreme Court of Israel. We argue that Hayut devised well-thought of judicial strategies that enabled the judiciary to maintain and potentially enhance its power vis-à-vis the other branches of government. Under Hayut’s leadership, the Supreme Court managed to uphold the rule of law and the democratic nature of the state of Israel, most notably through Hayut’s greatest legacy: the unprecedented and bold implementation of judicial review of constitutional statutes.
Theunis Roux and Sinethemba Memela, The chief justice chosen by God to save South African democracy: Explaining Mogoeng Mogoeng’s unexpectedly successful tenure
At the time of his appointment as South Africa’s chief justice in 2011, serious concerns were expressed about Mogoeng Mogoeng’s fitness for office. He was a religious conservative, it was said, with a questionable record as a lower-court judge in matters involving sexual assault and violence against women. He was also the Constitutional Court’s most junior justice, whom many thought the then President Jacob Zuma would treat as a political lackey. As things turned out, Mogoeng’s tenure was relatively successful. While his conservative religious views sometimes interfered with the performance of the institutional dimension of his role, his decisions in politically sensitive cases were forceful and independent. This article examines three possible explanations for this outcome, concluding that the accumulated authority of the office of the chief justice gave Mogoeng the freedom to act on his religiously and politically motivated opposition to corruption. In two cases in which his religious views might have conflicted with the 1996 South African Constitution’s progressive values, the Constitutional Court’s institutionalized tradition of reasoned decision-making constrained his ability to give expression to his personal values. Chief justices in fragile democracies, this finding suggests, may find support for independent decision-making in unexpected places, with the role that judicial ideology plays, in particular, being quite different to its role in jurisdictions with a more open-textured Constitution.
Andrea Pozas-Loyo and Julio Ríos-Figueroa, The double-edged sword of judicial corporatism: Mexico’s chief justice in periods of constitutional stress
Research on chief justices (CJs) have underscored the individual features of justices and the institutional characteristics of the office. We focus on an additional organizational dimension, the relationship between the chief justice and the judiciary, arguing that it can become critical in periods of constitutional stress. We argue that insider CJs, those who reach the Supreme Court after a long career within the judiciary, have resources that outsiders lack: the backing of the corporation and judiciary’s esprit de corps as an important organizational source of strength and will to defend judicial autonomy as well as to serve as a check in contexts of constitutional tension. We illustrate the argument in the case of Mexico’s CJs during the administration of President López Obrador (2018–2024), contrasting the tenures of outsider CJ Zaldívar and insider CJ Piña. We show that judicial corporatism in Mexico’s hyper-pyramidal judiciary has two edges, one that makes the judiciary inertial and sluggish and a brighter side that favors resistance to political takeover.
Victoria Miyandazi and Duncan M. Okubasu, Judiciary chiefs in hybrid regimes: Kenya
This article examines the critical role of judicial chiefs in hybrid regimes, using Kenya as a case study. It highlights how judicial effectiveness arises from the complex dynamics of leadership, institutional independence, interdependence, and public support. Through an analysis of the tenures of Kenya’s first three Chief Justices post-2010—Mutunga, Maraga, and Koome—the study demonstrates that impactful judicial leadership transcends individual stature. Rather, it hinges on the judiciary’s ability to fulfill its judicial review mandate, protect institutional integrity, foster public trust, and collaborate with other government branches to fortify democracy. Each Chief Justice faced distinct challenges and adopted unique strategies to address them, highlighting the judiciary’s pivotal role in navigating political and constitutional pressures. The findings reveal that, in hybrid regimes, judicial efficacy depends on a judiciary’s capacity to uphold constitutional principles, assert its authority, and maintain independence amidst a volatile political environment. As Kenya’s judiciary continues to evolve, its leaders must focus on institutional cohesion, resource management, and public engagement to meet their democratic and constitutional responsibilities. This analysis reaffirms that in hybrid regimes, judicial resilience is essential for preventing authoritarian regression and advancing democratic constitutionalism.
Daniel Bogéa and Lívia Guimarães, Rotating chief justices in a democracy under stress: The Brazilian Supremo Tribunal Federal under Bolsonaro
This article addresses how successive chief justices led the Brazilian Supremo Tribunal Federal (STF) during the government of Jair M. Bolsonaro. First, it describes the institutional setting of the CJ “rotating” model, which combines formal rules establishing a short, two-year term and an election among sitting justices with the informal rule of selecting the most senior member of the Court. Second, it describes how three sequential CJs made tactical choices in face of executive encroachments departing from that institutional framework. The article sustains that in examining the role of the Court as a central site of resistance, we must look more closely at the performance of its formal leadership. Chief justices adopted tactics resulting from a mix of their peculiar personal traits, contextual changes, and the incentives of the institutional setting. The article shows that incremental change in the Court’s approach to the executive’s encroachments happened through the exercise of judicial, administrative, and representative powers by successive CJs. The workings of the “rotating” model were important in setting the conditions for three different, successive approaches by the STF’s formal leadership during a period that posed an existential threat to the institution and to the democratic regime.
David Kosař and Katarína Šipulová, Judicial empowerment of chief justices in Central Europe through supranational means – Judicial self-defense or judicial self-dealing?
Chief justices in Central Europe—defined as the presidents of the supreme court—are powerful and consequential actors. Politicians in the region are well aware of this fact and have sought to undermine, bypass, or replace them. This article shows that chief justices have, in many cases, fought back. It argues that the increased supranational protection of judicial independence in Europe has changed the dynamics between chief justices and their domestic governments and, more broadly, has increased the likelihood of judicial resistance by chief justices in the face of democratic decay. Chief justices can, under such conditions, leverage supranational institutions and transnational alliances to halt or slow down backsliding. At the same time, this article cautions against uncritical supranational support for chief justices, as they may also misuse or abuse supranational protection for personal or political gain. The article concludes with suggestions for how the strategies adopted by chief justices in Central Europe can be adapted in jurisdictions outside Europe, where supranational safeguards for judicial independence is less robust.
Julius Yam and Cora Chan, Oratory leadership of chief justices in post-handover Hong Kong
This article examines how Hong Kong’s three post-handover chief justices—Andrew Li, Geoffrey Ma, and Andrew Cheung—have responded to constitutional and political challenges through their public speeches, statements, and interviews. It observes that Li adopted a bold and proactive approach that connected Hong Kong’s legal system with the wider common law world, while Ma sought greater engagement with the general public on rule-of-law issues. Cheung’s approach, in contrast, has thus far been more conciliatory and circumspect than that of his predecessors. Despite the differing leadership styles adopted by the three chief justices and the distinct nature of the challenges they have faced, the task for all three has been to find an equilibrium between liberal and authoritarian ideologies that sustains Hong Kong’s common law legal system without compromising Chinese sovereignty, and an element of pragmatism underlies all three leaders’ oratory approaches.
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