The Jurisprudence of Particularism

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Is there space for particularism which would limit the implementation of European Union law in a constitutional democracy? This is the question the recently published book edited by Kriszta Kovács seeks to answer. The open-access volume examines courtroom national identity claims in Central Europe and examines these claims through the lens of particularism. By taking particularism as the prism, the volume offers a new analytical scheme to evaluate the judicial invocation of identity.

Particularism is typically contrasted with universalism. However, particularism does not necessarily have to be exclusionist. It can be understood as particularistic manifestations and reflections of universal constitutional principles such as freedom or equality. Continue reading →

Struggles for Belonging. Citizenship in Europe, 1900–2020

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Citizenship was the mark of political belonging in Europe in the twentieth century, while estate, religion, party, class, and nation lost political significance in the century of extremes. Struggles for Belonging. Citizenship in Europe, 1900–2020 (OUP, 2021) demonstrates this thesis by examining the legal institution of citizenship with its deciding influence on the limits of a political community, on in- and exclusion. Citizenship determined a person’s protection, equality, and freedom and thus his or her chances in life and survival. This book recounts the history of citizenship in Europe as the history of European statehood in the twentieth and early twenty-first centuries, doing so from three vantage points: first, as the development of a legal institution crucial to European constitutionalism; second, as a measure of an individual’s opportunities for self-fulfillment ranging from freedom to totalitarian subjugation; and, third, as a succession of alternating, often sharply divergent political regimes, considered from the perspective of their inclusivity and exclusivity and its justification. Continue reading →

Two Tensions: How International Law Fails to Properly Address Secession

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Even in seemingly stable political communities such as the EU or the UK, secessionist movements regularly put forward their claims for independence. This poses a challenge for both constitutional and international law. The first challenge is that state creation is both political and legal. No right to self-determination or secession – even if it exists, which in most cases it does not – relieves a separatist movement of the duty to make and sustain their case politically. The second challenge is rooted the current substance of international law on secession. In 2022, the UK Supreme Court found that international law does not help Scotland’s case for independence. This illustrates the argument that international law on its own is not the main legal space in which secessionist pressures find accommodation. On the contrary, constitutional arrangements currently seem more important than international law. Continue reading →

“Women, Life, Liberty”: Women Against the Authoritarian Regime

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There are many different criteria that can be used to assess the state of a political regime. One, if not the most important criterion is whether the regime respects and actively protects the fundamental human rights of its subjects. Women’s rights are human rights. Women, like men, have a human right to pursue happiness. Like men, they have the right to physical and mental self-determination, to decide for themselves who and what they want to become and what kind of life they want to lead. The right to self-determination includes the right to make life-defining decisions such as choosing a partner and whether or not to have children. And a woman also exercises her freedom of self-determination when she chooses what job she wants to do or decides what to do with her free time and how to dress when she goes out. Continue reading →

The Public Uses of Coercion and Force from Constitutionalism to War

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War is barbaric and wrongful—at least for Kantians. For Kantians, there are no just causes for war as such. War is permissible only when it is the only way to secure peace, in self-defense. A Kantian theory of war is thus particularly interesting as it fleshes out the constitutive tensions of the use of violence. It may be seen as an alternative normative theory of war, similar but not identical to the just war theory tradition. This is interesting as in the last decades, the main dividing line among normative theorists of war has been between two wings of just war theory: Continue reading →

Local Meanings of Proportionality: Exploring the Culturally Specific Logic of Proportionality in French, English and Greek Public Law

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Proportionality increasingly dominates legal imagination. Its spread, accompanied by a global paradigm of constitutional rights, appears to be an irresistible natural development. Today, proportionality is perceived as a model of legal reasoning or even an emerging global grammar of constitutional adjudication. During the last decades, it has been at the core of a prescriptive human rights theory first developed in the work of Robert Alexy and claiming universal application. In comparative law, proportionality is a commonly used example of a legal transplant that attests to the convergence between legal systems, if not globally, at least within Europe. Continue reading →

The Construction of the Customary Law of Peace: Latin America and the Inter-American Court of Human Rights

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The UN High Commissioner for Human Rights, Michelle Bachelet, recently called for the end to all forms of violence and a return to peaceful dialogue in response to Colombia’s recent protests by a wide range of civil society groups and trade unions disillusioned by the failure of the 2016 peace agreement to resolve the root cause of inequality. At present, Latin America may be characterized as a region which has enjoyed an epoch of “long peace”, due to the lack of inter-state wars, but a diametric rise in intra-state violence, evidenced by its ranking as having the highest level of violence in the world and in particular having the highest levels of violence against workers and women. Continue reading →