venerdì 24 maggio 2013

Cole-Fabbrini-Vedaschi (eds.), Secrecy, National Security And The Vindication Of Constitutional Law, Elgar, 2013


‘This book contains the broadest and deepest analysis of the legal and policy issues that relate to secrecy and national security on one hand, and the imperatives of a functioning democracy on the other. The broadest because it brings to bear materials from many countries, the deepest because it brilliantly explores a core problem of constitutional government.’
– Norman Dorsen, New York University, US and President, American Civil Liberties Union, 1976–1991
Contributors include: O. Aronson, K. Clark, D. Cole, D. Curtin, F. Fabbrini, L. Garlicki, S. Krebs, A. Lynch, J. Mazzone, C. Murphy, T. Ojanen, K. Roach, M. Scheinin, S. Schulhofer, S. Sedley, S. Setty, M. Vashakmadze, A. Vedaschi, S. Vladeck, C. Walker

Chalmers, Democratic Self-Government in Europe

Domestic Solutions to the EU Legitimacy Crisis

In September 2012, the Eurobarometer found for the first time that more European citizens considered the EU to be undemocratic than democratic. Responses up to now have focused on how to reform the EU Institutions.

This paper takes a different approach. The European Union should only govern when it has democratic authority within a member state. To this end, the paper proposes five reforms which could be realised without EU Treaty change:

1. There should be a new test of relative democratic authority where the EU can only act if it enlarges choices or protects certain values in a way that cannot be done by domestic parliaments and where the benefits of this action exceed collective domestic democratic costs.

2. This test of relative democratic authority would be policed by national parliaments. An EU proposal would be abandoned unless two thirds of the national parliaments indicate their support.

3. A new test of democratic responsiveness would require that if one third of the national parliaments propose either that legislation be reviewed or that new legislation should be proposed, the Commission is obliged to make a proposal to this effect.

4. Individual national parliaments should also be able to pass laws disapplying EU law where an independent study shows that EU law imposes higher costs than benefits for that member state.

5. To protect certain domestic democratic values and traditions, citizens should have the right to petition a national Constitutional Court to disapply an EU law if the law violates those values or traditions. If an EU law is disapplied by a national parliament or Constitutional Council a majority of other parliaments, on the basis of an independent report, may petition the European Council to mediate, if the costs on other citizens are excessive or there is no violation of domestic democratic values or traditions.  

Finally, the paper considers the options of exiting the EU or pursuing selective engagement – two proposals increasingly debated in the UK context. It concludes that much EU law will necessarily still be applied regardless of whether a state is within or outside the EU. Paradoxically, the constraints of EU law are such that a state may be less restricted by EU law when it is inside the EU, under the scenario above, than when it is outside the Union.

The Influence of Judicial Ideology on the Use of Precedent

Anthony Niblett 

University of Toronto - Faculty of Law

Albert Yoon 

University of Toronto - Faculty of Law

May 22, 2013

Legal scholars have long argued that judges are ideologically motivated when deciding cases, constrained only by judicial review or legislative oversight. Recent empirical research, consistent with this claim, shows that federal judges appointed by Democratic presidents decide cases differently than those appointed by Republican presidents. Largely overlooked, however, is how judicial ideology influences how judges write opinions and how judges use legal precedent.

We test the hypothesis that the citation of precedents in a legal opinion is influenced by the ideological make up of the presiding panel. We create a unique dataset of every citation by the U.S. Court of Appeals in unanimous opinions from 1971-2007 to a Supreme Court decision from 1953-2007. Our results provide strong evidence that judicial ideology influences how judges cite Supreme Court precedent. Panels with more Republican-appointed judges are more likely to favorably cite conservative precedent and criticize or distinguish liberal precedent. Counterintuitively, this effect is weaker in a small subset of cases in "political" areas of law where panel composition is highly correlated with the outcome of the case.
Number of Pages in PDF File: 31
Keywords: Judges, Precedent, Courts, Judicial behavior, Citation behavior, Politics, Law & Economics
JEL Classification: K4, K40, D7

GLJ] German Law Journal Symposium on the EU's political and economic constitution: REGENERATION EUROPE (Floris de Witte & Moritz Hartmann eds.)‏

Full text available at:

The Unwritten Constitution and the Rule of Law

David Dyzenhaus 

University of Toronto - Faculty of Law/Department of Philosophy


in Grant Huscroft and I. Brodie, eds., Constitutionalism in the Charter Era, (Canada: LexisNexis, 2004) 383-412 

The argument of this paper is that debate about the legitimacy of judicial resort to unwritten constitutional values cannot be resolved by requiring judges to anchor their resort in values that are stated in the constitutional text. For opposition to judicial resort to such values is most fundamentally opposition to judicial authority to invalidate statutes on a value basis, whether written or unwritten. In fact, the dispute here is between the common law tradition and legal positivism, with the latter assuming a guise of a democratic positivism that marginalizes judges. The paper uses the theoretical writings of Justice Scalia as the main foil for its argument that judges who adopt this guise fail in their duty to uphold the rule of law.
Number of Pages in PDF File: 34
Keywords: Constitutional interpretation, common law, judicial independence, deference

The Euro – The Beginning, the Middle...and the End?

Philip Booth 

City University London - Sir John Cass Business School

Francisco Cabrillo Rodríguez 

Complutense University of Madrid - Industrial and Financial Analysis Institute (IAIF)

Juan Enrique Castaneda Sr.

University of Buckingham

John Chown 


Jamie Dannhauser 

Lombard Street Research

Kevin Dowd 

Nottingham University Business School (NUBS)

Katja Hengstermann 


Bodo Herzog 

Reutlingen University - ESB Business School

Andrew Lilico 

Europe Economics

Patrick Minford 

Cardiff University Business School; Centre for Economic Policy Research (CEPR)

Neil Record 

Record Currency Management Limited

Pedro Schwartz 

Universidad CEU San Pablo 

April 12, 2013

The Euro – The Beginning, the Middle...and the End?, P. Booth, ed., Institute of Economic Affairs, 2013 

The UK decided not to join the euro on economic grounds. This was a decision which met with approval from the vast majority of UK liberal economists and which has been proved right by the course of events. Indeed, even the major supposed benefit of the euro – reduced currency volatility – is questionable when the volatility of sterling and the euro against other world currencies is considered.

The euro zone – even without the UK – was not an optimal currency area. Many proponents of the euro thought that it would evolve into an optimal currency area through structural reform and economic convergence. This has not happened in practice.

Differences in financial systems between euro zone members meant that their economies responded very differently to global economic shocks and to the ECB’s monetary policy operations. This helped to create the financial imbalances that became unsustainable.

With the possible exception of Ireland, product and labour markets in euro zone members are too rigid to respond adequately to economic shocks. The result has been high unemployment and low or negative economic growth in a number of euro zone countries.

In general, floating exchange rates are likely to deal with economic shocks at lower cost than fixed exchange rates or single currency arrangements. This was not the major consideration, however, when countries decided to join the euro. Many of the countries that joined the single currency did so because it was thought that external discipline on domestic governments would have beneficial long-term effects.

Historical evidence suggests that monetary unions that have not been followed by political unions have tended to fail. This does not mean that such unions are impossible. In this respect, however, the euro was an experiment. It might be possible to proceed from the current position to a euro zone made up of a smaller number of countries. Any countries participating in a single currency should, however, examine carefully their long-term fiscal balance sheets if the strong are not to become responsible for the debts of the weak. This process should include careful analysis of pension and other long-term liabilities. Indeed, if the euro survives the current crisis, it could be brought down by government indebtedness caused by pension liabilities.

It is very difficult for countries to leave the euro although members could be suspended. Suspension should happen in the case of Greece, at least. This could be followed by the adoption of parallel currency systems whereby the euro can be used alongside new domestic currencies in those member states that are suspended. Currency competition would complement a more general agenda for decentralisation in the EU.

If there is a break-up of the euro, it is extremely important that it happens in an orderly way. This will be difficult to achieve because the EU elite are unwilling to countenance the possibility that the euro might break up and will therefore not plan for such an eventuality. A break-up of the euro must go hand in hand with vigorous promotion of free trade in the difficult political environment that will exist.

An alternative solution to the euro crisis would be to return the euro to its founding principles. There could be very strict enforceable ex ante rules that all member countries had to meet. Countries that
did not abide by the rules would take no part in the economic and monetary policy decisions of the EU or would be suspended from membership.

EU states could also decide that monetary policy should be decoupled from government altogether. The euro has not succeeded as a single currency with its current institutional mechanisms, and state currencies have often proved to be inflationary. On the other hand, free banking systems create the right incentives for bankers to act prudently and to not inflate the money supply.
Number of Pages in PDF File: 216

giovedì 23 maggio 2013

Constitutional Socio-Economic Rights and International Law: 'You are Not Alone'

Torsten Stein 

Saarland University, Germany

April 23, 2013

Potchefstroom Electronic Law Journal, Vol. 16, No. 1, 2013 

The second oratio was a keynote speech delivered by Torsten Stein, the Director of the Institute of European Studies and holder of the chair for European law and European Public Law at Saarland University, Germany. He delivered his speech during November 2012 at the 3rd Human Rights Indaba on The Role of International Law in Understanding and Applying the Socio-economic Rights in South Africa's Bill of Rights, which was held by the Faculty of Law (NWU, Potchefstroom Campus) in collaboration with the Konrad-Adenauer Foundation. He shared some thoughts about the nature, development and implementation of socio-economic rights within an international and European setting. The next nine articles make up the bulk of this issue.
Number of Pages in PDF File: 19

The criminalization of irregular immigration: law and practice in Italy, Pisa Un. Press, 2013

A. Di Martino- F.Biondi Dal Monte- I. Boiano and R. Raffaelli (eds),  The criminalization of irregular immigration:  law and practice in Italy, Pisa Un. Press, 2013

This report presents the main findings of a research project that lasted almost two years and that has been financed by the Open Society Foundations.
Our work on irregular immigration has been triggered by allegations of  shabby detention conditions in the Centers for Identification and Expulsion (CIEs), where irregular immigrants may be detained before their expulsion, as well as by the awareness that the Italian system for the removal/expulsion of irregularly staying third-country nationals is not in line with the EU Returns Directive (Directive 2008/115). Indeed, it did not comply with the Directive at the time when we begun working on this issue, and it is still not in line with it, even after the Court of Justice declared such incompatibility (with its decision in El Dridi) and the law was amended with a view to ensure compliance.

Full text available at:

mercoledì 15 maggio 2013

Pringle: Legal Reasoning, Text, Purpose and Teleology

Paul P. Craig 

University of Oxford - Faculty of Law

May 13, 2013

Maastricht Journal of European and Comparative Law, 2013 

The CJEU's judgment in Pringle saved the European Stability Mechanism from invalidity. The result was unsurprising, given that the contrary conclusion would have precipitated further crisis in the financial markets. The judgment is nonetheless highly interesting and not merely for those concerned with this aspect of EU law. This is because it contains much that is of more general relevance for the very nature of legal reasoning, and the blend of text, purpose and teleology that informs legal discourse. This article addresses two of the central claims made in the case.

The first was that the ESM was in reality concerned with monetary policy and not economic policy and thus fell within the exclusive competence of the EU, with the consequence that the Member States had no capacity to make the ESM. The second and most important aspect of the applicant's argument was that the ESM infringed the rule against bail outs contained in the Lisbon Treaty. The CJEU also rejected this argument. It correctly identified the rationale underlying the no bail out rule, this being to prevent diminution in the incentive for financial probity by the Member States. The Court then concluded that the terms of ESM assistance entailed no such diminution. This conclusion is however problematic as will be seen in the article, and the reality is that result in Pringle can only really be sustained by the addition of a teleogical dimension to the Court's reasoning.

A third dimension to the case concerned the ability of the EU institutions to participate in the ESM. Reasons of space mean that this is not examined in any detail in this article. In brief, the CJEU applied prior rulings to the effect that EU institutions are able to participate in agreements made outside the EU legal framework, provided only that they are compatible with EU law, and that the powers accorded to the EU institutions do not alter the essential character of the powers conferred on those institutions by the Treaties. The application of this rule may well have been defensible in relation to the ESM, but it nonetheless raises more general issues of principle and legitimacy that have not been explored. A subsequent article will consider the foundational, procedural and substantive issues posed by this rule.
Number of Pages in PDF File: 9

lunedì 13 maggio 2013

CONREASON Project: EU Legal Integration Survey

From the CONREASON project team

The EU Legal Integration Survey: An Expert Survey on the Response of Domestic Highest Courts to the Legal Integration Process
.We are conducting an EU-wide expert survey on domestic supreme and constitutional courts and their doctrinal response to the legal integration process. Whether academic, judge, practitioner, law student or else, you are all invited to complete our survey.

The questionnaire takes only a few minutes to complete. You can choose on which court you wish to report on and even take several surveys in case you want to report on more than one court.

Link to the survey:

A Legal Theory of Finance

Katharina Pistor 

Columbia University School of Law

May 9, 2013

Journal of Comparative Economics, Vol. 41, No. 2, 2013
Columbia Public Law Research Paper No. 13-348 

This paper develops the building blocks for a legal theory of finance. LTF holds that financial markets are legally constructed and as such occupy an essentially hybrid place between state and market, public and private. At the same time, financial markets exhibit dynamics that frequently put them in direct tension with commitments enshrined in law or contracts. This is the case especially in times of financial crisis when the full enforcement of legal commitments would result in the self-destruction of the financial system. This law-finance paradox tends to be resolved by suspending the full force of law where the survival of the system is at stake; that is, at its apex. It is here that power becomes salient.
Number of Pages in PDF File: 53

The Right to Leave the Eurozone

Jens Dammann 

University of Texas at Austin - School of Law

February 10, 2012

Texas International Law Journal, Vol. 48, No. 2, 2013
U of Texas Law, Public Law Research Paper
U of Texas Law, Law and Econ Research Paper 

The Eurozone is facing an existential crisis. Greece has been teetering on the verge of national insolvency. Repeated interventions by the European Union and the International Monetary Fund have so far allowed Greece to avoid this fate, but no one can predict for how long. Portugal, Ireland, and Spain have also had to rely on rescue packages by the European Union, and it remains unclear to what extent their economies will weather the crisis.

One of the options discussed in this context is for individual countries to leave the Eurozone. Initially, this option was brought into play solely for countries like Greece that were at the center of the economic crisis. Some believe that such countries could profit from leaving the Eurozone because a subsequent devaluation of their national currencies would make it easier for their economies to become competitive again.

More recently, however, it has been suggested that some of the more stable EU Member States — most notably Germany — might also want to leave the Eurozone. The chief attraction of such a move would be to avoid being caught by mountainous liabilities generated by ever-new rescue packages

Against this background, a crucial question is whether the Member States have a unilateral right to exit the Eurozone while staying in the European Union. In the existing literature, this question has so far been answered with a resounding, “no.” By contrast, this Article takes the opposite position. More specifically, my argument has two steps: First, I show that, as a doctrinal matter, the case against a right to withdraw from the Eurozone is far from compelling. Second, I demonstrate that, under certain conditions, a right to leave the Eurozone is desirable as a matter of legal policy.
Number of Pages in PDF File: 29
Keywords: Eurozone, euro, European Central Bank, Eurocrisis, euro crisis, exit, Grexit

Overcoming Citizenship: Six Practical Steps for Overcoming the Hierarchy of Nationality

Alan Hyde 

Rutgers University - School of Law

May 10, 2013

Rutgers School of Law-Newark Research Paper No. 125 

The legal concept of citizenship is employed almost exclusively to justify differential treatment of otherwise identically-situated individuals. Legal interventions around the world attempt to mitigate this discrimination. The discriminatory aspects of citizenship may be substantially mitigated by a six-step program: avoid the word citizen; disaggregate its legal consequences; advance transnational human rights as a source of rights; proliferate multiple citizenship; replace naturalization oaths and ceremonies with automatic registration; and ultimately treat all remaining distinction between citizen and noncitizen as suspect, presumed driven by no policy other than hatred or ethnic superiority.
Number of Pages in PDF File: 21
Keywords: immigration and citizenship law, public international law, human rights,global economy

The Structure of Constitutional Pluralism

Alec Stone Sweet 

Yale University - Yale Law School and Yale Political Science

May 8, 2013

International Journal of Constitutional Law, 2013 

The essay, a review of Nico Krisch's Beyond Constitutionalism: The Pluralist Structure of Post-National Law, argues that "constitutional pluralism" is a structural property of many existing and emergent legal systems.
Number of Pages in PDF File: 10
Keywords: legal pluralism, constitutional pluralism, European Convention on Human Rights, European Court of Justice, United Nations Security Council

sabato 11 maggio 2013

The Court marks the 50th anniversary of the judgment in Van Gend en Loos


On 13 May 2013, at the seat of the Court of Justice in Luxembourg, a day of reflection will take place to commemorate the 50th anniversary of the judgment in Van Gend en Loos, delivered on 5 February 1963. During the day, the judgment will be examined as a source of and a framework for the principles which have shaped the constitutional structure of the European Union and from the point of view of its potential for promoting the future development of European integration. See programme
The conference, which will be organised by a committee chaired by President of Chamber A. Tizzano and composed of Advocate General J. Kokott and Judge S. Prechal, is addressed to all law professionals and the academic world of the European Union. The deliberations will be conducted in French and English.
For the first time in the history of the Court such an event will be broadcast live on the Court's internet site to allow the general public to follow the conference sessions, reflecting the unique nature of the event and the importance of the principle of direct effect for each EU citizen and company

venerdì 3 maggio 2013

Who Has the Last Word? Three Theories of Judicial Review

Earl Pollock 

Independent Author

April 28, 2013

Judicial supremacy — the doctrine that the Supreme Court’s interpretation of the Constitution is binding on Congress and the Executive — is now embraced by the Court, supported by most lawyers, and generally accepted by the public as conventional wisdom. Yet the theory has not only been rejected by some of our greatest Presidents but its legitimacy continues to be challenged by many of our most prominent constitutional scholars on both the right and the left. While it may be cogently argued as a matter of public policy that the judiciary ought to have “the last word”, the validity of the theory largely rests on a twentieth-century reconstruction of constitutional history.

In particular, the issue of the judiciary’s power to refuse enforcement of an Act of Congress is generally viewed as requiring a stark choice between two polar alternatives — either acceptance of judicial supremacy or no judicial review at all. But among the Founders (including Thomas Jefferson) there was also strong support for an intermediate “departmentalism” theory.

This broader debate among the three competing theories is an indispensable part of the context of the much-celebrated (and commonly misread) 1803 decision in Marbury v. Madison, which rejected the theory of legislative supremacy (the British system) and upheld the Court’s authority to consider the validity of an Act of Congress. But — contrary to a revisionist interpretation — Marbury did not establish judicial supremacy and instead is demonstrably consistent with the far less sweeping departmentalism rationale.

I. Introduction
II. A Semantic Minefield
III. Legislative Supremacy
IV. Departmentalism versus Legislative Supremacy
V. The Assault on the Judiciary
VI. The Marbury Case
VII. Just What Did Marbury Decide?
VIII. The Aftermath of Marbury
IX. The Court Asserts Its Supremacy
X. Challenging Judicial Supremacy
Number of Pages in PDF File: 40
Keywords: Judicial Supremacy, Judicial Review, Constitutional History, Marbury v. Madison, Legislative Supremacy, Departmentalism

American Responses to German Legal Scholarship: From the Civil War to World War I

David M. Rabban 

University of Texas School of Law

April 30, 2013

The University of Texas School of Law, Public Law and Legal Theory Research Paper Series Number 445 

German legal scholarship had an enormous impact in the United States from the Civil War until World War I. During the last three decades of the nineteenth century, American legal scholars in all specialties relied heavily, though not uncritically, on the historical analysis of law developed by Friedrich Karl von Savigny in the early nineteenth century. American legal historians, who wrote internationally recognized works on the history of English law while stressing its Germanic origins, built on German scholarship about early Germanic law, particularly on books by Rudolph Sohm and Heinrich Brunner. At the beginning of the twentieth century, Roscoe Pound repeatedly invoked Rudolph von Jhering while promoting sociological jurisprudence as an alternative to historical jurisprudence. Unfairly ascribing to prior American scholars his interpretation of Jhering’s attack on German formalism, Pound created a misleading impression of late nineteenth-century American legal thought that remains dominant today.
Number of Pages in PDF File: 36

The Arab Spring and Islamic Legal Thought

Leonid Sykiainen 

National Research University Higher School of Economics

April 30, 2013

Higher School of Economics Research Paper No. WP BRP 17/LAW/2013 

At the end of 2010 there was series of political crises in the Arab world and this period came to be known as “the Arab Spring”. Islam has played a significant role in these events. In certain countries overthrowing the existing regimes resulted in Islamic governments coming to power. A number of aspects of the Arab Spring attracted the attention of contemporary Islamic legal thought. Its different schools diverge in the assessment of the mass protests. Islamic jurisprudence explains the “fiqh of revolution” which justifies the demonstrations and protests against the regime from a Sharia-based point of view.
Number of Pages in PDF File: 22
Keywords: the Arab Spring, Islam, political reforms, Sharia, demonstrations, innovation, fiqh of revolution

The Supreme Court's New Source of Legitimacy

Or Bassok 

New York University (NYU) - NYU

April 30, 2013

University of Pennsylvania Journal of Constitutional Law, Vol. 16 (forthcoming) 

In recent decades, the Supreme Court has lost its ability to base its legitimacy solely on its legal expertise yet it has gained public support as a new source to legitimize its authority. Due to growing public understanding that legal expertise does not award the Court with determinate answers, the Court has partly lost expertise as a source of legitimacy. The idea that judges decide salient cases based on their political preferences has become part of common sense and has eroded the Court’s image as an expert in the public mind. On the other hand, as a result of the invention of scientific public opinion polls and their current centrality in the public mind, the Court has now available a new source of legitimacy. Thanks to public opinion polls that measure public support for the Court, the Court for the first time in its history, has now an independent and public metric demonstrating its public support. The monopoly elected institutions had on claiming to hold public mandate has been broken. As a result of these changes as well as the lessons the Court took from the Lochner decisional line and Brown, an important shift in the political balance of power and subsequently in the Rehnquist Court’s understanding of its own sources of legitimacy occurred.
Number of Pages in PDF File: 54
Keywords: expertise, legitimacy, public opinion


Cass R. Sunstein 

Harvard Law School

May 1, 2013

Under existing Executive Orders, agencies are generally required to quantify both benefits and costs, and (to the extent permitted by law) to show that the former justify the latter. But when agencies lack relevant information, they cannot quantify certain benefits. If this is so, how should agencies decide whether and how to proceed? As a matter of actual practice, agencies often engage in “breakeven analysis,” by which they explore how high the nonquantifiable benefits would have to be in order for the benefits to justify the costs. Breakeven analysis is most useful when the agency is able to identity lower or upper bounds, either through point estimates or through an assessment of expected value. If lower and upper bounds are not readily available, agencies might be able to make progress by exploring comparison cases in which relevant values have already been assigned (such as for a statistical life). When agencies cannot identify lower or upper bounds, and when helpful comparisons are unavailable, breakeven analysis may not be a great deal more than a hunch or a conclusion, or perhaps (when agencies choose to proceed) a way of announcing a decision in favor of precaution. Even if so, breakeven analysis does have the virtues of helping to identify what information is missing, of specifying the conditions under which benefits would justify costs (“conditional justification”), and of explaining why some cases are especially hard.
Number of Pages in PDF File: 27
Keywords: Cost-benefit analysis, nonquantifiable benefits, human dignity

How Much Eclectic and Opportunistic Is Modern Political Science?

Simeon Mitropolitski 

University of Montreal

April 30, 2013

Largely inspired by Max Weber’s instrumental vision of social science, the modern political science likes to see itself as an enterprise where researchers choose freely among different methods for the only sake of advancement of knowledge. Adam Przeworski, for example, a name in comparative politics and in democratization studies, calls his methodology eclectic and opportunistic. This presentation challenges the understanding of modern political science as an eclectic and opportunistic methodological enterprise. My conclusions are based on the analysis of the writings of a few authors in the discipline, including Przeworski. I will show that despite the full academic freedom to choose among different research techniques and methods of interpretation, most scholars prefer to stick with limited number of similar instruments. I will investigate the reason(s) why these authors, including Przeworski himself, do not answer the call for eclectics and opportunism.
Number of Pages in PDF File: 18
Keywords: political science, methodology, theory, discipline, Przeworski

Designing Islamic Constitutions: Past Trends and Options for a Democratic Future

Clark B. Lombardi 

University of Washington School of Law


International Journal of Constitutional Law, 2013 

In recent years a growing number of countries have adopted constitutional provisions requiring that state law respect Islamic law (sharia). Muslims today are deeply divided, however, about what types of state action are consistent with sharia. Thus, the impact of a "Sharia Guarantee Clause" depends to a large degree on questions of constitutional design -- on who is given the power to interpret and apply the provision and on what procedures that they follow when making their decisions. This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGC's, and it considers the impact that different schemes have had on society. Building on this background, the article considers what type of SGC enforcement scheme, if any, are likely to permit (and ideally promote) a state to pursue democratic policies. As it notes, SGC's are often found in authoritarian or imperfectly democratic constitutions. Unsurprisingly, the designers of SGC enforcement schemes in non-democratic countries have generally tried to ensure that their SGC will be interpreted and applied in a way that permitted or even promoted non-democratic policies. Nevertheless, we can draw from the experience of these countries some important lessons about the types of SGC enforcement scheme that will allow more democratic states to promote both democratic political participation and rights. At the same time, recent debates have erupted in Western liberal democracies about how best to reconcile rights enforcement with democracy. These debates clarify some issues that aspirational Islamic democracies will face as they try to develop SGC enforcement schemes for a democratic society, and they provide insight into the qualities that an institution must possess if it is to address such issues effectively. A number of Muslim countries are currently debating how best to square a constitutional commitment to respect Islam with parallel commitments to democracy and rights. Acknowledging that these countries will need to tailor their SGC enforcement schemes to very different local conditions, this paper describes some basic design features that effective democratic SGC enforcement schemes are likely to share.
Number of Pages in PDF File: 50
Keywords: Islam, Sharia, Constitution, Constitutional Design, Democracy, Rights, Arab Spring, Comparative Constitutions, Comparative Law

Notes on an 'Open' Constituent Power

Illan Rua Wall 

University of Warwick

May 1, 2013

This paper examines the critical responses to the question of constituent power. Instead of providing a foundation for the constituted order, the paper looks at the various ways in which constituent power can be viewed as ‘open’ and undetermined. It looks at two issues in particular: the ‘subject’ of constituent power, and the nature of the ‘power’ involved. Surveying various critical theorists of the constituent moment, the paper concludes on the various difference within such open textured theory.
Number of Pages in PDF File: 15
Keywords: Constituent Power, Constitutionalism, The People, The Multitude, Potentia, Virno, Laclau, Agamben, Ranciere, Negri, Dussel