Tag: Constitutional Theory
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Ron Levy and Graeme Orr: To Save Democracy, Reform the Law
The US election just passed has made many people wonder about the merits of democracy. If an election can still be won using the dark rhetorics of earlier, troubled times in Western history, then they may have a point. In fact, ever since there have been democracies, there have been critics of democracy concerned about…
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Stefan Theil: Polycentricity – A Fatal Objection to the Adjudication of Environmental Rights?
In an unprecedented ruling, the Hague District Court has recently compelled the Dutch State to reduce the greenhouse gas emissions of the Netherlands by 25% by 2020 based on the emissions levels of 1990. The Urgenda Foundation had successfully argued that the Dutch State was under an obligation to protect its citizens form climate change…
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Stefan Theil: Constitutions as culture: Two insights from Peter Häberle’s “The rationale of constitutions from a cultural science viewpoint”
Constitutions are the cultural achievement of centuries of historical legal development, an expression of the cultural self-presentation of a people. For all their variety, constitutions seek to set the rules for a fundamental order in an objective, rational and principled manner. The general structure of the state, the inclusion and contours given to basic legal…
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Stefan Theil: Three insights from Peter Häberle’s “Preambles in the text and context of constitutions”
Preambles are a hallmark of constitutions, and questions regarding their inclusion and content are an important part of the drafting process: a clear majority of the 194 constitutions analysed by the Constitute Project opted in favour of more or less expansive preambles. In this country, an early draft of a Constitution for the UK by…
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Thomas Adams: Wade’s Factortame
William Wade’s analysis of the second Factortame case ((1996) 112 Law Quarterly Review 568) is well known, and justly so. The facts, too, require little in the way of rehearsal. Briefly, and simplifying somewhat: the House of Lords, as it was then known, decided in 1990 to ‘disapply’ a 1988 statute of the UK Parliament…
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Stuart Lakin: The Sovereignty of Law: Freedom, Constitution and Common Law by Professor Trevor Allan: Some Preliminary Thoughts
Most readers of this Blog will undoubtedly be familiar with the work of Professor TRS Allan. It is difficult to think of anyone who has made a more significant contribution to UK public law scholarship in recent decades. For the uninitiated, Allan is best known for his radical challenge to constitutional orthodoxy in Britain. Over…
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Rogier Creemers: The Constitutionalism Debate in China
Over the past few months, a heated debate about the role of the Constitution in Chinese political life has emerged. This debate comes in the wake of the 18th Party Congress and the handover of power to the fifth generation of leaders with Xi Jinping becoming General Secretary of the Party, and equally importantly, Chairman…
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David Mead: “Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases
In his 2004 book “Don’t think of an elephant” cognitive linguist George Lakoff offered his view on the recent US political landscape. I’m very grateful that Daithí Mac Síthigh made me aware of it. Specifically, Lakoff tried to set out what he thought accounted for the success of the Republican right in winning the battle…
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Nick Barber: Does China Enjoy Greater Legitimacy Than Any Western State?
I was listening to the radio a little while ago, and heard Martin Jacques talking about China. I listened with renewed concentration. Jacques was formerly editor of Marxism Today, so he is a man who knows a thing or two about oppressive pseudo-socialist regimes. Much of what Jacques had to say was insightful, but one…
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Colin Harvey: Reconstructing the ‘Political Constitution’ of Northern Ireland
For reasons that are not difficult to grasp, the constitutional process in Northern Ireland has been marked by fragility and instability. The entity ‘Northern Ireland’ – carved out in the early 1920s – rested on insecure foundations and struggled to establish legitimacy. It was a constitutional creation mapped onto stark ‘facts on the ground’, embedded…