Published by De Gruyter

Volume 14 Issue 1

Issue of ICL Journal

Contents
Journal Overview

Publicly Available July 17, 2020

Articles

June 9, 2020

Democratizing the Doctrine of Unconstitutional Constitutional Amendments: The Puzzle of Amending the Judiciary Branch

Catalina Torres-Artunduaga, Santiago García-Jaramillo

Page range: 1-42

Abstract

The increasing interest of legal academia on the doctrine of Unconstitutional Constitutional Amendments and its growing enforcement by the judiciary in different jurisdictions has started to normalize a doctrine that was considered controversial and extraordinary. This paper seeks to cast some doubts on the use of this doctrine, especially when the Court that enforces it is the subject of the amendment itself. In the first section it will question the conceptual foundations of the doctrine by recourse to legal theory, focusing not only on the idea of constituent power, but also on those of the rule of law and accountability. In the second section, some comparative cases of unconstitutional constitutional amendments will be analyzed, focusing on those where the judiciary itself was the subject of the amendment. Finally, from a normative and conceptual standpoint, a dialogic approach to the application of the doctrine will be proposed, to mitigate the fact that Constitutional Courts can become an unaccountable accountability-holder.

June 8, 2020

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

Eszter Polgári

Page range: 43-69

Abstract

The present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

June 8, 2020

Judicial Review (Departmentalism) vs Supremacy: The Connection to a 17th Century Debate and a Dilemma for Today

Boleslaw Z Kabala

Page range: 71-102

Abstract

Proponents of judicial supremacy argue that the interpretation of the Constitution by the Supreme Court is authoritative for the two other branches of government, while advocates of judicial review (or departmentalism ) argue that authority to interpret the Constitution resides in each branch. Both sides offer historical examples in which their understanding prevailed. How to resolve this impasse? I argue that Hobbes and Spinoza can inform the debate. To do so, I first unpack the terms: what is the difference between judicial review or departmentalism and judicial supremacy? I then show that a renowned legal scholar, Larry Alexander, specifically invokes Hobbes in defense of judicial supremacy. For Alexander, the Supreme Court functions as a Hobbesian sovereign. Spinoza presents a clear alternative to the Hobbesian solution of avoiding a state of nature by concentrating power in a unitary sovereign, namely, via a strategy of diffusing power throughout society. But Spinoza’s solution is not yet a formal separation of powers. This conception of power can therefore clarify the assumptions made by advocates of both judicial review or departmentalism and judicial supremacy. I close by considering instances in American history when the application of departmentalist logic did not lead to a Hobbesian state of nature. And what are the lessons for today? I suggest that it is perhaps time to consider an analog to the Canadian/Israeli notwithstanding clause. But rather than adopting verbatim their legislative override, which effectively designates the legislative branch to be supreme , we could require two of the three independent and equal branches to decide contended constitutional questions. Such an American notwithstanding clause would respect the design of our federal government.

Open Access June 8, 2020

The Five Models for State and Religion: Atheism, Theocracy, State Church, Multiculturalism, and Secularism

Paul Cliteur, Afshin Ellian

Page range: 103-132

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Abstract

This article deals with one of the perennial questions of legal and political philosophy, ie, how the state should relate to religion? It makes a distinction between five models: (i) the atheist state, (ii) the theocratic state, (iii) the model of an official state church, (iv) the multiculturalist state, and (v) the agnostic state (or secular state). The authors reflect on the legitimacy of each of these models. Some states reclaim their right to adopt an official religion as their state religion or as the religious Leitkultur of their country (model iii). Others favor the support of religion as long as this is premised on the equal rights of all religions (model iv). And others think that the state can only support equal citizenship if the state does not support any religion whatsoever (model v).

About this journal

Objective
The Vienna Journal on International Constitutional Law (ICL Journal) is dedicated to the advancement of legal knowledge in the field of International Constitutional Law. Advised by a body of distinguished jurists the Journal publishes high-standard peer-reviewed contributions by scholars and legal professionals from around the globe. 　

Topics

European Constitutional Law
Public International Law
Constitutionalization of International Law
Internationalization of Constitutional Law
Migration of Constitutional Ideas
Legal Theory
Comparative Constitutional Law

By linking these select perspectives the Journal endorses an approach towards a coherent understanding of International Constitutional Law, thus preparing the ground for novel answers to the challenges of a changing global legal framework. The Journal addresses the global scientific community, scholars and researchers in various disciplines working in the field of International Constitutional Law. Moreover, the Journal provides information on recent constitutional developments relevant to practitioners as well as academics, particularly by monitoring the case law of Constitutional Courts in Central and Eastern Europe.

Article formats
Research articles, notes & essays, reports, book reviews.

Volume 14 Issue 1

Issue of ICL Journal

Frontmatter

Democratizing the Doctrine of Unconstitutional Constitutional Amendments: The Puzzle of Amending the Judiciary Branch

Abstract

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

Abstract

Judicial Review (Departmentalism) vs Supremacy: The Connection to a 17th Century Debate and a Dilemma for Today

Abstract

The Five Models for State and Religion: Atheism, Theocracy, State Church, Multiculturalism, and Secularism

Abstract