Migration as a new metaphor in comparative constitutional law

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

I. INTRODUCTION Is it ever appropriate for American courts to cite or defer to foreign law? The question arose last Term in a bitter dispute among the Justices of the U.S. Supreme Court in Roper v. Simmons, (1) the juvenile death penalty case. (2) One of the frustrating things about Roper, however, is that no one on the Court bothered to articulate a general theory of the citation and authority of foreign law. (3) Writing for the Court, Justice Kennedy said that it was proper to take foreign law into account and that referring to the laws of other countries could be instructive for the Court's interpretation of the Eighth Amendment. (4) But he did not explain the jurisprudence behind this view. (5) Nor did the Roper dissenters articulate a theory of citation to foreign law that they could squarely refute; they simply denounced the practice. The theory that is called for is not necessarily a complete jurisprudence. But it has to be complicated enough to answer a host of questions raised by the practice: about the authority accorded foreign law (persuasive versus conclusive), about the areas in which foreign law should and should not be cited (private law, for example, compared to constitutional law), and about which foreign legal systems should be cited (only democracies, for example, or tyrannies as well). The theory has to be broad enough to explain the use of foreign law in all appropriate cases: too many scholars call for a theory that will explain the citation of foreign law only in constitutional cases. (6) The theory has to be persuasive enough to dispel the serious misgivings that many Americans have about this practice: why should American courts cite anything other than American law? Above all, it has to be a theory of law. The argument cannot just be that good diplomacy requires us to ingratiate ourselves with the Europeans. (7) It must explain why American courts are legally permitted (or obliged) to cite to non-American sources and how that practice connects with the status of courts as legal institutions. An example may help get at the sort of theory I have in mind. When courts cite their own precedents, they do so on the basis of the theory of stare decisis, which provides a platform on which judges can articulate and defend their deference to precedent. It explains why deference is appropriate even for cases in which justice or policy seems to require a different result. It explains why precedent is more important in some cases than in others. And it explains its relation to various sources of law (the difference between stare decisis in common law and in constitutional interpretation, for instance). No doubt the details of stare decisis are controversial. (8) But even if one disagrees with a judge's conception, it is surely better that he should articulate such a theory than that he simply give the impression that he thinks deferring to precedent is a good idea. We should require nothing less for the citation of foreign law. In his dissent in Roper, Justice Scalia said that the Court's citation of foreign law was unprincipled and opportunistic. (9) Even this observation, however, does not mean that there cannot be a good theory to support the practice. Using my analogy again, Justice Scalia has sometimes argued that the Court's following and departing from precedent in cases involving individual rights is unprincipled and opportunistic. (10) But it does not follow that he rejects stare decisis or that he thinks it is not worth developing a theory of precedent. Similarly, we should not reject the idea of a theory of the citation of foreign law simply because we see foreign law being cited opportunistically; we should reject it only if we think inconsistent and unprincipled citation is inevitable under the auspices of such a theory. Though it appears from his dissent in Roper that Justice Scalia's denunciation of the citation of foreign law proceeds without any appreciation that such citation should be based on a theory, dicta from his recent concurrence in Sosa v. …

What Europeans Can Learn from an Untold Story of Transjudicial Communication: The Swiss-Turkish Experience

This paper identifies an increasingly important phenomenon: the use of mechanisms of constitutional change to erode the democratic order. A rash of recent incidents in a diverse group of countries such as Hungary, Egypt, and Venezuela has shown that the tools of constitutional amendment and replacement can be used by would-be autocrats to undermine democracy with relative ease. Since military coups and other blatant ruptures in the constitutional order have fallen out of favor, actors instead rework the constitutional order with subtle changes in order to make themselves difficult to dislodge and to disable or pack courts and other accountability institutions. The resulting regimes continue to have elections and are not fully authoritarian, but they are significantly less democratic than they were previously. Even worse, the problem of abusive constitutionalism remains largely unresolved, since democratic defense mechanisms in both comparative constitutional law and international law are largely ineffective against it. Some of the mechanisms most relied upon in the literature — such as the German conception of militant democracy and the unconstitutional-constitutional amendments doctrine — are in fact either difficult to deploy against the threat of abusive constitutionalism or easily avoidable by would-be authoritarian actors. This Article suggests ways to reinforce democracy against these threats while acknowledging the extreme difficulty of the task. The phenomenon of abusive constitutionalism should impact the conversation about how the fields of comparative constitutional law and international law might best be leveraged to protect new democracies.

Existing and planned legislation stipulates various obligations to provide\ninformation about machine learning algorithms and their functioning, often\ninterpreted as obligations to "explain". Many researchers suggest using\npost-hoc explanation algorithms for this purpose. In this paper, we combine\nlegal, philosophical and technical arguments to show that post-hoc explanation\nalgorithms are unsuitable to achieve the law's objectives. Indeed, most\nsituations where explanations are requested are adversarial, meaning that the\nexplanation provider and receiver have opposing interests and incentives, so\nthat the provider might manipulate the explanation for her own ends. We show\nthat this fundamental conflict cannot be resolved because of the high degree of\nambiguity of post-hoc explanations in realistic application scenarios. As a\nconsequence, post-hoc explanation algorithms are unsuitable to achieve the\ntransparency objectives inherent to the legal norms. Instead, there is a need\nto more explicitly discuss the objectives underlying "explainability"\nobligations as these can often be better achieved through other mechanisms.\nThere is an urgent need for a more open and honest discussion regarding the\npotential and limitations of post-hoc explanations in adversarial contexts, in\nparticular in light of the current negotiations of the European Union's draft\nArtificial Intelligence Act.\n

Concerns about threats to human autonomy feature prominently in the field of AI ethics. One aspect of this concern relates to the use of AI systems for problematically manipulative influence. In response to this, the European Union's draft AI Act (AIA) includes a prohibition on AI systems deploying subliminal techniques that alter people's behavior in ways that are reasonably likely to cause harm (Article 5(1)(a)). Critics have argued that the term ‘subliminal techniques’ is too narrow to capture the target cases of AI-based manipulation. We propose a definition of ‘subliminal techniques’ that (a) is grounded on a plausible interpretation of the legal text; (b) addresses all or most of the underlying ethical concerns motivating the prohibition; (c) is defensible from a scientific and philosophical perspective; and (d) does not over-reach in ways that impose excessive administrative and regulatory burdens. The definition provides guidance for design teams seeking to pursue responsible and ethically aligned AI innovation.

The Constitution guarantees freedom of religion. It is doubtful whether meditation is included in the protection of religious freedom. Traditionally, meditation has been used as a means to achieve religious goals. Modern meditation is losing its religiosity. In other words, modern meditation is changing into secularity, popularity, and industrialization. The secularization of meditation calls for a reinterpretation of the concept of religion. The concept of meditation is no longer limited to religion. Meditation is an expansion of an open concept in which the religious dimension and the secular dimension correspond or separate. Meditation cannot be embraced as a religion and set as a uniform protection area for religious freedom. The state should consider the scope of religion to protect religious freedom. There is no agreed upon constitutional definition. A constitutional answer to this is required. This is because a new interpretation is needed for peaceful coexistence between the two different concepts under the constitutional order. The constitutional issues regarding meditation are largely organized into three categories. First, is meditation a religion? Second, what is the concept of meditation in the constitution? Third, what is the relationship between freedom of religion and meditation? It is possible to try an effective constitutional interpretation of religious freedom by dividing it into religious meditation and secular meditation. In the case of religious meditation, it is a means to the only end pursued by religion. Unlike this, in the case of secular meditation, a reasonable constitutional interpretation must be premised in that it is a practice of life to internally experience the various purposes of each person. This study considers whether it is legitimate to regard meditation with religiousness as the realm of freedom of religion, but in the case of meditation with secularity, as the realm of freedom from religion. To prove this, the concept of religion and meditation, and freedom of religion and freedom from religion in the Constitution were distinguished and explored. The specific content of freedom from religion was reviewed by grafting the concept of meditation on the freedom of unbelief, freedom of non-religious activities, freedom of non-religious assembly and assembly, and the limits of freedom from religion. And, tentatively named 'freedom of religious meditation' and 'freedom of secular meditation' derived from freedom of religion and freedom from religion are presented. The purpose of this study is to suggest the direction of legal interests by setting the concept of religion and meditation in the Constitution and the scope of protection of the basic rights of religious meditation and secular meditation that may conflict through the interpretation of the Constitution.

Constitutional amendments are central to the study of comparative constitutionalism. Amendment rules and processes, as well as their effects on the constitutional order, have been the subject of much scholarship. Of particular interest to constitutional scholars in recent years are the theory and practice of unconstitutional constitutional amendments (UCA). Courts around the world have held certain constitutional amendments as unconstitutional on the grounds that the impugned amendments altered fundamental aspects of the existing constitution. Public intellectuals and civil society organizations have challenged the government's constitutional interpretations as unconstitutional through public debate and social mobilization alongside litigation. The Constitutional Court represented the interests of the minority to suppress Thaksin and his political allies. Thailand was a fragile democracy when the country's Con¬stitutional Court ruled that the proposed amendments in 2013-14 were unconstitutional. The chapter also presents an overview on the key concepts discussed in this book.

This major work written by prominent South African academics is an introduction to the new constitutional order in South Africa. It places fundamental rights as affirmed in Chapter 3 of the South African Constitution in a comparative and international context. The authors draw heavily on the constitutional experience of countries such as Canada, India, Germany, and the United States, which greatly influenced the drafting of Chapter 3 of the Constitution. The study is shaped by principles that form the foundation of the new order: the supremacy of the Constitution, the notion of a democratic constitutional state, and the judicial protection of fundamental rights. The book is divided into four parts. The first deals with constitutionalism, democracy, and constitutional interpretation. The second part provides an examination of the historical background of the 1993 Constitution and a description of the principal features of the Constitution. The third part contains an analysis of the key fundamental rights which constitutes the main purpose of the study. Detailed treatment is given to civil and political rights, social and economic rights, the concepts of equality and administrative justice, and the circumstances in which limitations may be imposed on rights. A separate chapter is devoted to the international protection of human rights as directed by Section 35(1) of the Constitution. The final part comprises a bibliography of the works cited in the text following the sequence of the chapters. This is a book which will be of interest to all constitutional law specialists and to many political scientists, particularly those with an interest in constitutionalism and constitutional litigation.

The history of Hong Kong is intertwined with British colonialism and China’s Hong Kong policies. This history offers unique and important lessons on the rise and fall of Hong Kong’s constitutional order. In accordance with the 1984 Sino-British Joint Declaration, China declares 12 basic policies regarding Hong Kong and has translated these into the 1990 Hong Kong Basic Law. It is generally held that “One Country, Two Systems” will be the main constitutional architecture of Hong Kong for 50 years, and it will remain basically unchanged even after 2047. However, there are obvious difficulties and enormous differences on the interpretation of Article 5 of the Hong Kong Basic Law concerning the true meaning of “unchanged for 50 years.” Recent years have witnessed the great need for deciphering the time-code of the Basic Law because the question of 2047 draws closer and closer to the central stage for the determination of Hong Kong’s constitutional future. This Article aims to provide legal analysis on Article 5 of Hong Kong Basic Law and the constitutional fate of Hong Kong toward 2047. It distinguishes all sorts of Article 5 interpretations into three broad categories: “Unchanged for 50 years” as international promise, “unchanged for 50 years” as political commitment, and “unchanged for 50 years” as constitutional obligation. Different approaches have been utilized for various constitutional interpretations. But all in all, the constitutional puzzles regarding “unchanged for 50 years” must be addressed within the framework of the temporality of the Basic Law in a fast-paced world. In order to maintain the constitutional stability and endurance, to secure the unamendability of “One Country, Two Systems” in 2047 will be the best blessing for Hong Kong in every possible way.

Since 1981, when Joseph M. Bessette and Jeffrey K. Tulis first published The Presidency in the Constitutional Order, the study of the constitutional powers of the presidency has advanced considerably. Bessette and Tulis continue the conversation almost 30 years later, presenting original research on the most significant issues regarding presidential power and the Constitution. After introducing and identifying the main approaches to the study of the constitutional presidency and the nature of executive power, Bessette and Tulis, along with other constitutional scholars, cover a wide range of topics. These include the logic and meaning of Article II of the Constitution; the constitutional and political debate over Washington's Proclamation of Neutrality of 1793; the contribution of Theodore Roosevelt and William Howard Taft to the constitutional foundations of the modern presidency; the controversy over the presidential election of 2000 and the Supreme Court's decision in Bush v. Gore; military tribunals and the war on terrorism; executive orders; growing presidential influence over the budgeting process; executive privilege; impeachment; and demagoguery in democratic regimes. The book conjoins political and legal modes of analysis and shows how constitutional interpretation is indispensable to an adequate description of political behavior and serves as the source of standards for evaluating presidential conduct. The contributors offer new and distinctive arguments, especially in light of the renewed debate over executive power during the George W. Bush administration.

‘Successful constitutions and institutions’, says Ian Gilmour ( Inside Right: A Study of Conservatism (1978), p 70), ‘are not mere pieces of machinery. If they work, it is because of the ideas and beliefs of those who try to work them.’ The British constitution, having evolved over centuries, does not embody any single constitutional theory. It is the product of a long period of kingly rule, parliamentary struggle, revolution, many concessions and compromises, a slow growth of custom, the making and breaking and alteration of many laws. Although we lack a general theory of the constitution, there has come down to us an idea of constitutionalism – of a constitutional order which acknowledges the necessary power of government while placing conditions and limits upon its exercise. The British version of constitutionalism has been shaped by a number of leading ideas or principles: some of these have crystallised as rules or doctrines of the constitution; others have influenced constitutional thought or have gained currency as explanations or justifications of particular features of the constitution. In this chapter we shall consider some of these commanding ideas or doctrines and their place in the modern constitution. We start with democracy and then move on to consider the sovereignty of Parliament, the rule of law and the separation of powers. It will appear that, at times, there is a conflict, or tension, between these ideas; between democracy, for instance, and parliamentary sovereignty, or between sovereignty and the rule of law. A good deal of contemporary constitutional analysis is concerned with how such conflicts, or tensions, should be resolved and worked out. (For an engaging critique, see Murkens, ‘The quest for constitutionalism in UK public law discourse’ (2009) 29 OJLS 427.) Democracy and the constitution Democracy is not to be taken for granted. Neither is its contemporary acceptance as the only form of government able to claim legitimacy to rule. As John Dunn asks in his account of the history of democracy, Setting the People Free: The Story of Democracy (2005), pp 13, 15: Why does democracy loom so large today? Why should it hold such sway over the political speech of the modern world? What does its recent prominence really mean? When Britain and America set out to bury Baghdad in its own rubble, why was it in the name of democracy of all words in which they claimed to do so? Is its novel dominance in fact illusory: a sustained exercise in fraud or an index of utter confusion? Or does it mark a huge moral and political advance, which only needs to cover the whole world, and be made a little more real, for history to come to a reassuring end? Why should it be the case that, for the first time in the history of our still conspicuously multi-lingual species, there is for the present a single world-wide name of the legitimate basis of political authority? Democracy came late to the British constitution. Much of our constitutional architecture was constructed at a time when to accuse someone of harbouring democratic sympathies was a grave political insult. This is not to say that democracy came late to Britain in comparison with other countries. But it is to say that several key elements of the British constitution predate the emergence of democracy as an accepted form of government. Anthony King puts the point well ( The British Constitution (2007), p 249): The United Kingdom was a monarchy before it became a constitutional monarchy. It was a constitutional monarchy before it became a system of government built around ministers of the Crown. It was a system of government built around ministers of the Crown before it became a parliamentary system. And it was a parliamentary system before it became a parliamentary democracy. Democracy . . . was a novel feature grafted on to a pre-existing constitutional structure. Nonetheless, democracy deserves to be treated as the first of our constitutional themes since the working assumption of all the principal actors on the constitutional stage, even those who (like the monarch and the House of Lords) are not themselves democratically elected, is that Britain is, and ought to consider itself as, a modern democracy. Even if the assumption is sometimes misplaced or over-stated, it is impossible to understand the way the contemporary British constitution works without taking on board this basic working assumption. Equally, however, like all assumptions, it is rebuttable. On no account could today’s British constitutional order accurately be described as entirely or unambiguously democratic. (Valuable introductions to the idea of democracy abound. Among the better ones, see R Dahl, On Democracy (1998) and B Crick, Democracy: A Very Short Introduction (2002).)

Political science and law intersect not only in the political world, but as disciplines. This is as it should be, and for two important reasons: disciplinary history and content. As Fisher (2009, 798) notes, the first political science graduate program, founded in 1880, studied “history, law, and philosophy.” The American Political Science Association, founded in 1903, defined itself in terms of six distinct areas of study, five of which—comparative legislation, international law, constitutional law, administrative law, and jurisprudence—were in some manner about law (798). In addition, law is the expression of authority by the state. Its formation, content, and consequences form the purest expression of governmental power through what we more comprehensively define today as public policy. Early in the history of our discipline, political scientists approached the law in a manner that was “legalistic, formalistic, conceptually barren and largely devoid of what would today be called empirical data” (Somit and Tannenhaus 1967, 69). That is, they approached it as did lawyers of the time. Yet as political science matured, those who studied public law ceased being merely “little lawyers,” vesting their work with no less respect for the content of law, but tempered also with the tools and perspectives of what was by now a distinct discipline. No early political scientist better exemplified this maturation than Edward Corwin, especially (although not exclusively) as reflected in his timeless study, The President: Office and Powers (1957).

The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a ‘pouvoir constituent‘. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions.

This doctoral thesis conducts a critical analysis of how constitutional text is interpreted, more specifically the section that addresses taxing powers, considering how strictly such powers are discriminated. The aim is to determine whether the interpretation often intended for words and expressions deployed in that text is appropriate. According to such interpretation, the text carries concept terms whose meaning is usually derived from lessons in the field of Private Law; and also under a static perspective, assimilating the concept as it was construed when the Constitution came into effect. Critical analysis is based on a historical review of Brazilian constitutions in order to determine whether words and expressions, in the transition from one constitution to another, as the distribution of taxing powers changed, allow any certainty with regard to their meaning, at the constitutional level. This is followed by an analysis of how one reflects on reality, taking into account concept and type. The intention is to consider the possibility of flexibility and progressibility in tax types, still at the constitutional level; this rejects a mandatory use of Private Law concepts and signals toward the admission of types. We also consider changes which the interpretation of Law has undergone, taking into account, above all, constitutional interpretation techniques, as a premise to analyze the alleged literal and automatic imposition of Article 110 of the Brazilian National Tax Code CTN, which addresses the interpretation of taxing power rules and that would determine the option for Private Law concepts, whenever the terms in the Constitution have an equivalent in Private Law. Based on that analysis, this study aims to find the limits to interpretations of taxing power rules, if more open interpretation is possible. Admitting that words have meanings other than privatist concepts, or admitting a global interpretation of the taxing power rule without specifically analyzing every single word, does not imply accepting that the system is not very stringent. Even though the rule can only be conceived based on reality, which is up to date and verifiably in time, and though it is not limited to a word-by-word, prior, static and privatist analysis, the text introduces a normative framework whose boundaries are set by several factors, some of which include tax's historical range, confrontations with other taxing power rules and with principles of taxation, resorting to natural language and finally discourse practice.