Volume 20 Issue 5
Table of Contents
Editorial: In this issue; Guest Editorial: Islands and ocean: Public law and international legal ordering in Oceania; 10 good reads 2022
Honor Roll of Reviewers 2022
Articles
Virgilio Afonso da Silva, Standing in the shadows of balancing: Proportionality and the necessity test
Amichai Cohen and Yuval Shany, The switch: The Israel High Court of Justice’s transition from occupation law to human rights law
Stéphanie Hennette Vauchez, Taming the exception? Lessons from the routinization of states of emergency in France
Bell E. Yosef, A double-edged sword: Constitutional dialogue confined
Timothy Endicott, The rule of justice
Symposium: Pluralizing Constitutional Interpretation
Maartje De Visser and Jaclyn L. Neo, Pluralizing constitutional interpretation: An introduction
Maartje De Visser and Jaclyn L. Neo, What would a pluralist institutional approach to constitutional interpretation look like? Some methodological implications
Andrew Harding, Conventions and practical interpretation in Westminster-type constitutional systems
Lynette J. Chua, Constitutional interpretation and legal consciousness: Out of the courts and onto the ground
Kevin Y.L. Tan, Interpreting the constitution: The use and abuse of history
Critical Review of Governance
Franz Xavier Barrios-Suvelza, The concept of coup d´état under stifling stress: Legal theory’s political-science-based response
Critical Review of Jurisprudence
Maurits Helmich, The UK Supreme Court’s Miller II: Keeping the Court out of politics’ way?
I•CON: Debate!
Antoine Vauchez, The genie of independence and the European bottle: How independence became Europe’s most contentious legal and political category
Frank Vibert, Europe’s “independence wars”: A constitutional perspective—A reply to Antoine Vauchez
Book Reviews
Christoph Schönberger, Review of Michael Wilkinson. Authoritarian Liberalism and the Transformation of Modern Europe
Ching-Fang Hsu, Review of Kristina Simion. Rule of Law Intermediaries: Brokering Influence in Myanmar
Brian Christopher Jones, Review ofJack Beatson. Key Ideas in Law: The Rule of Law and the Separation of Powers
Kriszta Kovács and Gábor Attila Tóth, Review of András Sajó. Ruling by Cheating: Governance in Illiberal Democracy
Andrej Lang, Review of Afroditi Marketou. Local Meanings of Proportionality
Yasuo Hasebe, Review of Linda Colley. The Gun, The Ship and The Pen: Warfare, Constitutions, and the Making of the Modern World
ABSTRACTS
Standing in the shadows of balancing: Proportionality and the necessity test
Virgílio Afonso da Silva
The necessity test is one of the steps of the proportionality test. However, in the literature on the subject, written both by supporters as well as by critics of proportionality, the role of the necessity test has been frequently downplayed, sometimes plainly ignored. The spotlight has always been on balancing. This article shows that proportionality is not just about balancing, and that the necessity test has a much more important role to play than has been acknowledged so far. Its strengths are emphasized, especially its connection to politics, knowledge from other areas, time, and technological development. The article argues that shedding the appropriate light on these strengths has important implications for several ongoing debates around the proportionality test.
The switch: Israel’s High Court of Justice transition from occupation law to human rights law
Amichai Cohen and Yuval Shany
It has been suggested that the jurisprudence of the High Court of Justice (HCJ) relating to the territories occupied by Israeli in 1967 had effectively legitimized the occupation. Recent decisions by the HCJ suggest, however, that the legal paradigm it applies has shifted from Israeli administrative law to Israeli constitutional law, and from the international law of belligerent occupation to domestic human rights law. The Silwad judgment—a landmark decision from June 2020 in which the HCJ struck down the Regularization Law of 2017—illustrates this switch. Furthermore, it reflects the challenge confronting the HCJ when striving to facilitate structural change in the situation in the occupied territories. Contrary to some of the literature which criticized the switch to human rights norms for diluting the rights of Palestinians residing in the occupied territories, we submit that it potentially constitutes an important step in the direction of confronting the systematic discrimination of Palestinians which that belligerent occupation law paradigm failed to prevent.
Taming the exception? Lessons from the routinization of states of emergency in France
Stéphanie Hennette Vauchez
This article examines a particular version of contemporary threats to the rule of law: the routinization of emergency powers. Although the global response to the pandemic since 2020 has certainly epitomized the sudden infatuation with states of emergency (SOE), they have a longer history of becoming a new model of government that has come to saturate our contemporary political horizon, as every crisis (terrorism, pandemic, climate) seems to call for its own SOE. This article analyzes the unprecedented permanence of SOEs in contemporary paradigms of government. It first situates the contemporary practice of SOEs in the longer historical and theoretical frame of states of exception. It then reads the twentieth-century rise of the rule-of-law paradigm that is largely undergirded by an ambition to tame the exception as a challenge to this state of exception framework. Hence its failure to provide a relevant lens for analyzing contemporary SOEs. Through an in-depth study of recent French experiences of a SOE, this article shows that rather, than derogate to or suspend the legal order, contemporary SOEs are intensely juridical and claim to be fully compatible with the rule of law. In that, they set a dangerous trap: as they borrow the forms and language of the rule of law, contemporary SOEs threaten to subvert the model’s meaning and sense from the inside.
A double-edged sword: Constitutional dialogue confined
Bell E. Yosef
Dialogic judicial review is a dialectic interaction between supreme courts and legislatures regarding the constitutionality of legislation, in which each institution preserves its constitutional authority, and yet performs it while considering the other institution’s stance and its ability to respond. This interaction is based on reciprocity and upon the contribution of both institutions to the constitutional design and interpretation of legislation. This dialogic interaction has much value in the institutional and instrumental level. Alas, constitutional dialogue sometimes has a negative influence on petitioners and similar groups, as their rights are being trampled under a dialogic veil. This article argues that constitutional dialogue can (and sometimes must) be restricted to avoid hindering human rights during the constitutional institutional interaction. It sketches a doctrine designed to withhold the impairing of human rights in the name of dialogic interaction, through three arguments: (a) the constitutional dialogue must be restricted since reality shows that courts in many cases prefer legitimacy considerations over protecting human rights; (b) in the case of under-represented groups, there is no reason to trust legislatures to contemplate human rights considerations while crystalizing legislative response; and (c) courts can restrict the dialogic interaction by declaring the constitutional purpose as unconstitutional or by using judicial decisiveness—a strive for full and coercive judicial constitutional review.
The rule of justice
Timothy Endicott
Law can secure some aspects of justice in a political community. Yet the law should not generally prohibit injustices by private persons or give recourse against them. That would be tyranny. It may seem that the law should, by contrast, prohibit all injustices in the conduct of government, and give recourse against them. In this article I argue against that seemingly attractive idea. I do so by reference to three kinds of public injustice: in voting, in legislation, and in adjudication. I claim that those kinds of public injustice are not generally matters for the law. Preventing or repairing injustice is not enough to justify legal prohibitions or legal recourse against wrongs. The justification of legal measures depends on a political principle: that the law ought to make the political community a good one.
Pluralizing constitutional interpretation: An introduction
Maartje De Visser and Jaclyn L. Neo
The purpose of the symposium on pluralizing constitutional interpretation was to reflect upon the multiple sites at which interpretative activities take place, their real-world significance, and the methodological implications of expanding our scholarly lens beyond court rulings and beyond legal materials for a more complete understanding of how constitutions are engaged with. In this introductory article, we propose at least three directions for diversification. The first is the pluralization of actors beyond the courts, attention being drawn to the diverse range of institutions, entities, and individuals involved in giving meaning to the constitution. The second is methodological and disciplinary in nature; it addresses the manner in which this plurality of interpreters relate to nonlegal methods and sources, as compared to classic legal methods and sources. The third is about orientation and entails a shift from the study of doctrines, precedents, and conceptional analysis to a more dynamic approach to interpretation, as defined by intersecting viewpoints, coinciding sites of interpretation, and a shifting of institutional and disciplinary boundaries. Taken together, these directions hold out the promise of arriving at a more complete understanding of how constitutional law is engaged with as a lived reality.
What would a pluralist institutional approach to constitutional interpretation look like? Some methodological implications
Maartje De Visser and Jaclyn L. Neo
This article makes the case for adopting a genuinely pluralist perspective when studying constitutional interpretation and sets out the principal forms such inquiries can take. While it has now been accepted that the court-centricity that characterized much of the earlier work on constitutional interpretation must be recalibrated, the approach taken in much constitutional scholarship remains underinclusive, as the role of executives, agencies, ad hoc commissions, and social actors in constructing the meaning of the constitutional text is often downplayed, or altogether overlooked. We argue that a pluralist perspective is necessary to fully appreciate the practice of constitutionalism in each jurisdiction and enable more informed analyses of the relationship between constitutions and law-making. Through a series of case studies, we further demonstrate that, while nonjudicial interpretation is an important practice in all countries, such a perspective could be particularly apposite in dominant-party states, as well as those favoring political constitutionalism, where courts are unlikely to position themselves as the principal, let alone exclusive, authority on what the constitution means. This article also explores the methodological implications in designing pluralistic constitutional interpretation studies, focusing on the questions that await investigation, the core variables at play, and the particular hazards in collating and assessing the materials that must be reckoned with.
Conventions and practical interpretation in Westminster-type constitutional systems
Andrew Harding
This article focuses on what are termed “practical interpretations”—that is, constitutional interpretations given by the executive or legislative branch. It does so principally in relation to constitutional conventions in Westminster-type systems, which are normally not subject to judicial review. The argument is that these practical interpretations are of great significance, and more attention needs to be paid to them and to understanding how they are made, as they are at least equally important as judicial interpretations, in spite of expanding judicial review of conventions. In order to establish how nonjudicial interpretation operates, the discussion goes beyond the United Kingdom to consider how certain conventions, when transplanted elsewhere, receive very different interpretations. In the course of making this argument, the article explores the constitutional importance of practical interpretation, examining in the process the extent of judicial review of conventions.
Constitutional interpretation and legal consciousness: Out of the courts and onto the ground
Lynette J. Chua
This article examines the relevance of the study of legal consciousness, particularly that of ordinary people, to constitutional interpretation. It draws on sociolegal scholarship to explain how empirically informed, ground-up research on legal consciousness can make important contributions to the study of constitutional law away from elite actors and formal political institutions. Statutes, regulations, and court opinions that restrict the exercise of constitutional rights, and political discourse that is averse or friendly to activism and rights claims are conditions that shape the legal consciousness of ordinary people—their willingness and ability to make constitutional claims of their own in the courts, as well as their self-perceptions, social interactions, and relationships. Constitutional interpretation by ordinary people—their legal consciousness—in turn influences the development of constitutional law as it is interpreted by courts and other branches of government. By studying the words, thoughts, feelings, and (non)actions of citizens as a means of revealing how they perceive, think, and behave toward the constitution, scholars can produce a different type of study about constitutional interpretation—one that emerges from the ground up. Adopting the approach of legal consciousness research can contribute much-needed empirical insights into typically normative debates in legal scholarship about constitutional legitimacy and developments.
Interpreting the constitution: The use and abuse of history
Kevin Y.L. Tan
The interpretation of written constitutions is a legal rather than an historical enterprise, and history is but one of the judge’s many interpretive tools. This article looks at the question of when and how historical facts are used in constitutional interpretation, rather than whether they should be used. I argue that two fundamental canons of interpretation—the need to treat constitutions as sui generis and not as ordinary legislation, and the dictum that rights provisions should be given a generous interpretation in favor of the individual—require judges to use whatever tools they have at their disposal to interpret constitutions accordingly. As a tool, history is neutral and nondialectical. It may thus be used both in favor of and against a given interpretive stance. Sometimes, a recourse to history may also yield contradictory positions. Through five case studies I try to show: (a) that there is no inevitability in outcomes even when history is used in interpretation, and that it may in fact be relied on by both sides without yielding an obvious result; (b) that history may be used to restrict rather than promote liberties; (c) that history may also be abused to introduce “unwritten customary constitutional law” contrary to the words of the constitution; (d) where history was cited but proved unuseful; and (e) where history could helpfully have been used but was not.
The concept of coup d’état under stifling stress: Legal theory’s political-science–based response
Franz Barrios-Suvelza
The resignation of the Bolivian President Morales in November 2019 has sparked an international polemic over whether a coup d’état took place. This article concludes that the assumption of a coup d’état would be misleading. The problems faced by Bolivian case stem not only from the lax manner in which scholars have gathered facts, but also from the fact that the concept of coup may have reached its limits. Building on a legal approach, this article proposes a new conceptual strategy that overcomes both the under-theorization of the (partial) legal order variable used to define a coup and the underrating of this variable. Introducing this variable as the target during an anomalous seizure of executive power means moving from a threefold to a fourfold conceptual scheme of definition (victim, perpetrator, tactic and target). A coup must not only be illegal but must also break the partial legal order. As a result, the notion of regime restoration is proposed for cases in which the partial legal order underlying the regime has already been broken by the overthrown ruler well prior to the day of his anomalous exit.
The UK Supreme Court’s Miller II: Keeping the Court out of politics’ way?
Maurits Helmich
In recent years, the legitimacy of the United Kingdom Supreme Court’s has come under increasing pressure, with critics accusing the Court of unduly entering the domain of “politics.” Using the September 2019 Miller/Cherry “prorogation” judgment as a case study, this article analyzes the tension underpinning the criticisms. In particular, it makes two theoretical claims. First, three normative worries guide attempts to distance adjudicative judgment from the political sphere. Courts should not disrespect settled law (the “lawmaking worry”), interfere with the autonomy of politics (“the interventionism worry”), or answer political questions (“non-justiciability worry”). Second, though all three worries represent coherent norms in the abstract, in deeply controversial cases like Miller/Cherry, those norms fail to be of independent help. Attempts to distinguish the judicial domain from the domain of politics, the article argues, are themselves rooted in ideologically deeply colored definitions and acts of political stance-taking.
The genie of independence and the European bottle: How independence became Europe’s most contentious legal and political category
Antoine Vauchez
Over the past decades, the notion of “independence” has become an object of contention in EU politics in fields ranging from monetary policies to rule-of-law standards, to regulatory agencies. This article takes a broad socio-genetic approach to question the deep-seated, cross-sectoral entanglement between EU polity and the notion of “independence.” It explains how the European Union has been a laboratory of the notion of “independence,” transforming it from a negative institutional device (independence from) into a broad empowering technology of supranational government connected to notions of general interest, professional expertise and discretionary powers (independence for). The article analyzes the emergence of this European style of independence in conjunction with the jurisdictional claims and legitimizing efforts of the European Court of Justice (“the Court”), the European Commission, and the European Central Bank. The article examines three major EU constitutional crises from the inaugural years of the mid-1960s to the creation of an uber-independent European Central Bank in the 1990s and the more recent debates on judicial independence and it traces how a controversy on the meaning and scope of independence unfolded in each of these critical junctures. The article is meant to spark a productive debate about Europe’s “independence wars” in view of framing a more robust, yet democratically open, notion of independence to which policymakers (whether European or national) could be held accountable.
Europe’s “independence wars”: A constitutional perspective—A reply to Antoine Vauchez
Frank Vibert
This reply to Antoine Vauchez deploys a constitutional perspective to analyze three critical moments identified by Vauchez in the institutional evolution of the European Union. It argues that a constitutional lens offers a more robust perspective for considering the key issues underlying each of the “critical junctures.” It enables a clearer identification of the costs to the EU of prioritizing functional objectives over democratization. It places debate about the independence of the European Central Bank within the broader context of how to situate expert bodies within governance structures. The debates around the judiciary in Hungary and Poland can be seen as part of the inevitable tension between viewing Europe’s construction as work in progress towards “ever closer union” and the idea that the basic rules of democratic political association should be settled and stable. Far from being a benign “proxy” for Europe’s constitutional evolution, ‘independence’ obscures the real issues and the costs of evasion.
Comments