giovedì 31 dicembre 2015

Functional Method in Comparative Law – Much Ado About Nothing?

Jaakko Husa 
University of Lapland - Faculty of Law

January 1, 2013

EPLJ 2013; Vol. 2 No. 1 

According to sceptics there seems to be no point in talking about the functional method in comparative law or functionalism in scholarly comparative law. It has been claimed that functional comparative law ‘stands for everything that is bad about mainstream comparative law’ to its opponents. This article seeks to understand and explain the quintessential qualities of functionalism in order to highlight why it is so resilient. It is argued that there are certain qualities of functionalism which make it an intuitively tempting metaphor for a lawyer and especially for a Western comparative lawyer. One crucial motivational force behind the core argument of this paper is a suspicion according to which there has been perhaps too much ado about nothing in the debate over functionalism in comparative law.

Number of Pages in PDF File: 18

Keywords: functionalism, comparative law
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Holey Union: The Constitutional Paradox of Secession

Rivka Weill 
Radzyner School of Law - Interdisciplinary Center (IDC)

November 27, 2014

There are secessionist movements in all parts of the world, encompassing both democratic and non-democratic countries. It is typically thought that this important phenomenon is regulated by international law alone. But, this article argues that when looking anew at constitutional law through the lens of secession, democracies’ weak spots are revealed. While political actors and scholars traditionally believe that bans on political parties ('militant democracy') and constitutional eternity clauses (`unconstitutional constitutional amendment`) are used and justified to protect democratic values alone, they are in fact also used to fight against secession. Democracies have been able to conceal their fight against secessionists, by creating a large gap between “the law on the books” and “the law as practiced.” This raises paradoxes so extreme, the democracies begin to appear to be using the tools of authoritarian regimes.

In addition to exposing the facts on the grounds, the article also makes two normative claims: First, it argues that secession reveals the ways in which both doctrines—the ban and eternity clauses—are inextricably intertwined. This assertion is general and goes beyond the secession context. Second, the article argues that secession is helpful in revealing the intricate relationship between constitution-making and constitution-amending powers. Even those who hold that the power to amend the Constitution should be treated as equal to the constitution-making power may find that an exception is needed in the secession context. Secession may be regarded as an annihilation of the Constitution because it redefines the sovereign bodies. As such, secession necessitates extra-constitutional mechanisms. Contrary to the prevailing understanding that it is sufficient to garner the support of the seceding population, secession may require the independent deliberate consent of two new peoples—the seceding as well as the remaining population.

Studying the delicate dance of constitutional democracies and secessionist movements not only enables a better understanding of constitutional law but may also shed new scholarly light on assumptions that Constitutions are generally silent about secession and may even implicitly allow it.

Number of Pages in PDF File: 34

Keywords: Secession, Self-determination, Group rights, Minority rights, Militant democracy, Intolerant democracy, Ban on political parties, Unconstitutional constitutional amendment, Eternity clause, Constitution-making Power, Constitutional amendment Power, Popular sovereignty, Sovereignty Referendums, Terri

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The Influence of English Courts on the Development of International Law

Antonios Tzanakopoulos 
University of Oxford - Faculty of Law

December 5, 2015

CONTEMPORARY PERSPECTIVES ON BRITISH INFLUENCES ON INTERNATIONAL LAW, Robert McCorquodale and Jean-Pierre Gauci, eds, Martinus Nijhoff Publishers, Forthcoming 

This contribution does not aim to quantify the influence of English courts on the development of international law, but rather to highlight their contribution in that development by focusing on important decisions on the law of immunity and on UN Law and the law of international organisations, and by referring to further notable decisions in other areas of international law. This is done against the background of an understanding of domestic courts as 'agents' of international law development through instigation, reaction, and approval, which is also explained in the paper.

Number of Pages in PDF File: 17

Keywords: domestic courts, international law and domestic law, avoidance techniques, incorporation, transformation, immunity, international organisations, development of international law
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