By the time of the “big bang” accession in 2004, when ten new member states entered the European Union, it seemed that the fate of East-Central Europe was settled. From that time forward, these states were certified as democracies in good standing. But before the first decade was out on the accession, it became painfully clear that a consolidated democracy could come unraveled. Hungary’s constitutional system began imploding shortly after 2010 and in 2015 Poland began a short, sharp slide toward autocracy. In Hungary and Poland, parties with autocratically inclined leaders were voted into power. Both Viktor Orbán and Jarosław Kaczyński lied about their revolutionary ambitions before they were elected. Once in office, both began attacking judiciaries which were poised to hold them to account under the democratic constitutions they inherited. Continue reading
Climate Change, Migration and ‘Disappearing States’: The Case of Pacific Island Countries
Climate change is a material reality as much as it is a discursive one – and an extremely powerful one at that. Following the major scare story of global terrorism at the turn of this century, climate change seems to have become the new “Big Story”.1 The Pacific island countries (PICs), which face the threat of becoming entirely uninhabitable, have been positioned at the frontline of this discourse, as evidence of a changing climate and omen of a dystopian future of mass displacement. Indeed, the big story of climate change and mobility in the Pacific has been articulated through a narrative of climate refugees in need of legal recognition by the international community as they flee their sinking islands slowly swallowed up by unforgivable rising seas. Continue reading
Donald Trump as Global Constitutional Breaching Experiment
During the nearly 24 months since the inauguration of Donald Trump as President of the United States of America, it has become commonplace to observe that the actions of this President are ‘not normal’. Examples of his abnormal behaviour are numerous, but for a quick refresher consider the following (very incomplete) list. Calling the director of the National Parks Service to find photos of the inauguration to disprove media claims that President Obama’s inauguration had a larger audience. Launching an investigation into voter fraud over the election he won, without any actual evidence of voter fraud. Hanging up on the Australian Prime Minister because he did not like a pre-existing refugee agreement between the US and Australia. Pressuring the director of the FBI to stop investigating Michael Flynn for his undisclosed dealings with Russia and Turkey. Banning major media outlets from White House press briefings because he did not like the coverage he received from these organisations. Accusing President Obama Continue reading
Circumcision: Immigration, Religion, History, and Constitutional Identity in Germany and the U.S.
The great waves of global migration into and out of Europe such as those that preceded World War I, followed World War II, and again drew our attention in 2015 inevitably challenge the fixity or stability of a country’s constitutional identity. Whether official ideologies are those of assimilation, integration, pluralism, or multiculturalism seems not to matter; challenges will arise no matter. Constitutional identities are not just ensembles of laws and an accumulated national jurisprudence. They are grounded in cultural configurations that evolve over long periods of time but are, for the most part, taken for granted. Continue reading
Wie sich Autorität rechtfertigt: Expertise und demokratische Mehrheiten haben nur begrenzte normative Kraft
Weit verbreitet ist zurzeit das Argument, liberale Demokratien befänden sich in einer Autoritätskrise. Was aber ist damit gemeint? Ganz grundsätzlich meint eine solche Krise, dass Autoritätsbeziehungen erodieren. Das heißt, autoritative Behauptungen werden von ihren Adressaten nicht mehr als bindend anerkannt. Dies ist der Fall, wenn etablierte Rechtfertigungen des Autoritätsanspruchs versagen oder infrage gestellt werden. Die derzeitige Autoritätskrise kann als eine solche verstanden werden, in zweifacher Hinsicht: als eine Krise der Autorität von Experten und als Krise einer spezifischen Form demokratischer Autorität, Continue reading
Tradition and Constitutional Rights Review
Critiques on human rights and comparative law often criticize that an obsession with the universal norm or the “Common Core” erases the diversity and specificity of the local contexts. It is at the same time doubtful, however, that an assertion of “Asian values” could serve as a justification for denying universal human rights to any extent. The ways that tradition or national culture comes into rights practice are more subtle and varied. A constitution is sometimes claimed as an embodiment or representation of national identity and tradition. In other occasions, tradition is challenged as a threat to constitutional rights and principles. This essay examines two illuminating cases adjudicated by the South Korean Constitutional Court Continue reading
Reversing the Decline of Constitutional Democracy in Europe
Constitutional democracy is a system of government in which all powers are exercised under a constitution which grows out and is dedicated to the protection of equal human dignity. The latter requires that each and every individual is recognized an equal right to self-fulfilment within the scope of the same right recognized and exercised by others. By making equal human dignity a point of departure as well as the ultimate objective of its functioning, a polity characterized as a constitutional democracy is necessarily permeated by pluralism. Continue reading