Constitutional values beyond the State
Panel formed with individual proposals.
The occupation of the city, especially of its public spaces, turns possible meetings, protests and gives visibility to subjects and demands that are often ignored. It is not by chance that citizenship is a constitutive political condition of the subject in urban spaces and the city becomes a privileged space for political struggle. The very possibility of reunion in the city space thus constitutes both: a right of the citizen and a precondition for the exercise of other rights, including constitutional rights. This work seeks, therefore, to understand what is the role of urban manifestations in protecting the Constitution and, more than that, how can the occupation of urban space engage in the constitutional narrative. The hypothesis is that when protests take over the urban space with a shared language of rights, when they demand the fulfillment of the promises of the Constitution, they engage in the constitutional narrative and help to make this narrative concrete.
Indubitably, the 15-member Security Council (UNSC) has become increasingly powerful in the post-Cold War/post-1989 sole-superpower era. The UN Charter endows it with “primary responsibility for the maintenance of international peace and security“. This is precisely why in 2014, Prof. Anthony F. Lang, called for exploring the UNSC‘s role in promoting global constitutionalism post-1989, whose ‘epitome‘ is the ‘written Western liberal constitution‘ (WLC). Given the WLC‘s salience, it can be logically inferred that analyzing the UNSC‘s role in promoting global constitutionalism necessitates commencing with its WLC-promotion. But however, Lang himself, missed the UNSC‘s WLC-promotion and, by extension, its famed property rights. My paper explores this topic. It shows how the UNSC‘s Constitution-promotion (1988-2021) in poor Third World states has lent their transitional justice not a social justice orientation but a market one.
The foundational maxim “nemo judex in causa sua“ or “no individual should judge their own case“ has classically been used in constitutional theory to justify the need for a sovereign as an impartial umpire. The paper builds on Madison‘s application of the maxim to legislative decision-making, whilst identifying certain gaps that affect contemporary federal structures. In particular, it explores the maxim‘s role as a criterion to determine the type of rights that are better suited to be centralized in the EU and US. To this end, it contrasts minority rights and abortion as a divisive right in the two systems and demonstrates that the deplorable conditions of minorities in the EU and the ongoing polarization of abortion in the US are attributable to a structural flaw and a violation of the nemo judex maxim. It concludes by proposing ways in which the maxim could be better utilized to guide the division of powers over fundamental rights in certain federal settings.
Law is often taken as normative – power-conferring and duty-imposing – by virtue of conventions. Despite their foundational place in law, these conventions are often explained away, rather than carefully theorized. Either conventional practices are reduced to bare facts of instrumental rationality and incentives - or to robust already-normative facts about public morality, human rights, democratic legitimacy, etc. I argue against both of these approaches. We need to explain conventions in a way that distinguishes between what is legal and what is morally legitimate, disqualifying the latter approach. We also have to distinguish between brute force and law, disqualifying the former. I propose a way of maintaining both distinctions: taking conventions as irreducibly social (rather than moral) and intersubjective (rather than atomistically instrumental). Such an approach might allow for a more robust theory of the foundational rules of legal systems, and richer accounts of non-state law.
The role of scientific inputs in aiding justice has long been recognized in environmental protection, criminal evidence, and patents - there is less consideration of the impact of scientific knowledge on resolution processes and moral foundations of international law. This paper explores how the process of dispute resolution has come to rely on scientific inputs in taking certain decisions with implications on health and environment. This reliance will prove particularly relevant in international (investment) disputes arising out of governmental pandemic responses--with serious economic impacts. The paper is divided into two parts: 1) an overview and examination of how international courts and tribunals use, rely on, and interact with scientific knowledge, and 2) an analysis of how these inputs may be applied as tribunals take decisions on economic disputes. The analysis reflects on the impacts on the right to a fair trial and broader developments in global constitutionalism.
The European Commission for Democracy through Law (Venice Commission) played a crucial role in providing legal assistance and technical expertise in numerous processes of constitutional transition, notably in Central and Eastern European countries. Since the reform of 2002, an increasing number of extra-European states has joined the Commission, in a trend that is expected to grow in the coming years. This progressively enlarged membership raises a series of under-investigated questions affecting the identity, standards, and future of the Commission. Basing the analysis on empirical cases and building on the Commission‘s opinions, the paper focuses on the transition that the Venice Commission started in 2002 and on its impact in terms of European identity, legal standards, and working methods. It then elaborates on the future risks, opportunities, and scenarios that this newly inaugurated global “brave new world“ might have for the Commission‘s constitutional assistance activity.