Presenter and Discussant, ICON-S Conference ‘Courts, Power, Public Law’, University of Copenhagen, 5-7 July 2017

Looking forward to presenting next week on ‘The European Court of Human Rights’ “constitutional morality” in the religious domain’. The paper forms part of a panel on ‘Judicialisation of Human Rights Law and Policy: A Vehicle for Effective Protection of Fundamental Rights?’

The description of this panel reads as follows:

‘The panel introduces the Leiden Research Group ‘Effective Protection of Fundamental Rights in a Pluralist World’. Though judicialisation is in itself not a new phenomenon, in the context of today’s globalizing world and the increasing interaction between legal systems, judicialisation is taking on entirely new dimensions and is giving rise to new and complex issues. This is especially true in the field of fundamental rights. At first sight, this judicialisation in the area of human rights seems to be a positive development that furthers the effective protection of human rights and fundamental freedoms at the international regional and domestic level. However, judicialisation also raises a number of issues that need to be addressed, such as the democratic basis of law-making and separation of powers. Against this background, judicialisation as a means to further fundamental rights protection is very much in need of new and innovative research concerning its meaning workings and impact. Three elements merit particular attention during the panel: a.Conceptualization of judicialisation in the area of human rights; b.Judicialisation in relation to substantive areas of human rights; c.Potential and limitations of judicialisation for the effective protection of fundamental rights.’

My second paper presentation in Copenhagen is titled ‘In Defense of the Classical Liberal Conception Regarding Religious Freedom’, and will take place during a panel on ‘The Separation of Civil and Religious Powers’.

You can read the abstract of the paper here:

‘Leading U.S. scholar of constitutional interpretation Michael Paulsen has developed an interesting theory of religious freedom called ‘The Priority of God’. Paulsen distinguishes, first of all, a liberal conception of religious freedom, according to which it is widely assumed that religious truth exists in a society and the state is tolerant towards the various faith and other traditions. The U.S. however, has developed in the direction of a modern conception of religious freedom, which no longer recognises religious truth although the state remains tolerant. Moreover, still according to Paulsen, several European countries have adopted a postmodern conception of religious freedom. This conception does not just no longer recognise religious truth, but also implies a considerably less tolerant state as secularism becomes the established ‘religion’. This view paradoxically resembles the preliberal stance of religious intolerance out of the conviction that religious truth exists. In response to such developments and in light of the meeting’s general theme with special attention to the role of courts in achieving this, the proposed paper will make a case for the classical liberal position with respect to religious freedom. In light of the current religious diversity in society, this position still appears to be most conducive to safeguarding the position of religious minorities in public life in the increasingly secular, majoritarian contexts of Western liberal democracies.’

Finally, I will serve as discussant for Mathew John’s paper on ‘Framing Religion in Constitutional Power: A View from Indian Constitutional Law’ during the latter panel. Mathew John received his Ph.D. at the London School of Economics and Political Science in 2012. Since that year he has been working as an Associate Professor at the Jindal Global Law School Sonipat. Since January 2017 Ph.D. Mathew John is Fellow at the Käte Hamburger Center for Advanced Study in the Humanities ‘Law as Culture’.

For the full program of the ICON-S Conference, see: https://icon-society.org/wp-content/uploads/2017/06/ICON-S-Conference-2017-Programme.pdf.

See also:

Upcoming Speaking Engagement: 2017 ICON∙S Conference on ‘Courts, Power, and Public Law’, Copenhagen, July 5-7;

Press Release: ‘Hans-Martien ten Napel has book published “Constitutionalism, Democracy and Religious Freedom. To Be Fully Human”’.

 

Upcoming Speaking Engagement: 2017 ICON∙S Conference on ‘Courts, Power, and Public Law’, Copenhagen, July 5-7

 

My two scheduled presentations during the conference are entitled: ‘The European Court of Human Rights’ “constitutional morality” in the religious domain’, and ‘In Defense of the Classical Liberal Conception Regarding Religious Freedom’.

About the general conference theme:

‘The overarching theme of the ICON-S 2017 Annual Meeting will be “Courts, Power, Public Law”. The expanding role of courts is arguably one of the most significant developments in late-20th and early-21st century government. Today, courts around the world play an increasingly central role in defining the relationship between different organs of the state, as between state, non-state actors and individual citizens, and between national and supranational levels of governance. Domestic courts routinely interpret and enforce constitutional provisions guaranteeing the separation of powers, federalism and civil and political rights. Many domestic courts also now play a role in safeguarding democracy, and protecting and promoting social rights. In doing so, many domestic courts are also in active ‘dialogue’ with regional and international tribunals, as well as with transnational investment agreements or legal norms; and international courts likewise rely on regional and domestic human rights and public law norms in developing international jurisprudence.

What explains this increasingly dense network of judicial control over public power, and transnational judicial interaction? To what extent do courts succeed in achieving their goals, and under what conditions? In the midst of concerns about national and international security, how should courts respond to such concerns without compromising ideals of constitutional democracy? What should be the appropriate remit of international tribunals in balancing the competing claims of a just peace and individual responsibility? What are we to make of the role of courts in the management and mismanagement of the national and international economic crisis, and how it has called into question some of the classic institutions of democracy? Answering these questions requires close attention to the social, economic and political context for judicial review. It also invites attention to questions of public power: how, and under what conditions, do courts enjoy the power, legitimacy and independence necessary to serve as a meaningful check on national and transnational actors? How does the social and political power enjoyed by political elites, citizens or social movements contribute to the creation or success of judicial review in different settings? Do we need to rethink the conventional ways of understanding how courts mediate between the international and the national? Addressing these questions is a key focus for much of the leading scholarship on comparative constitutional law, comparative politics, comparative administrative law, and international law and governance today. It is also the focus of the ICON-S 2017 Conference.’

About ICON-S:

‘The initiative to create an International Society of Public Law emerged from the Editorial Board of I·CON – the International Journal of Constitutional Law. For several years now I·CON has been, both by choice and by the cartographic reality of the field, much more than a journal of comparative constitutional Law. I·CON has expanded its interests, range of authors, readers, Editorial Board members and, above all, issues covered to include not only discrete articles in fields such as Administrative Law, Global Constitutional Law, Global Administrative Law and the like, but also increasingly includes scholarship that reflects both legal reality and academic perception, and which in dealing with the challenges of public life and governance combines elements from all of the above with a good dosage of political theory and social science.’

Source, and all additional information:

https://icon-society.org/2017-conference/.

Introduction to volume ‘The Powers That Be. Rethinking the Separation of Powers’ now available online

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Abstract:

‘The idea of the separation of powers has been subjected to criticism and competition ever since it first came to be during the upheaval of the English Civil War. In recent years the case has once again been stated that the idea of the separation of powers has lost its significance in a globalised world, with a power constellation in which the distinctions between different types of “powers” have blurred and even so-called constituted power holders have become more and more diffuse. Yet even its fiercest opponents cannot deny that the idea of the separation of powers as a theory of government has, in the words of M.J.C. Vile, “in modern times, been the most significant, both intellectually and in terms of its influence upon institutional structures”.

The idea of the separation of powers reached its zenith in the United States and France in the late 19th century. In the two centuries that separate us from this zenith, the doctrine has suffered almost endless criticism, but endured nonetheless. The tenacity of the idea of the separation of powers is partly due to the fact that it is still widely held to be a procedural and institutional prerequisite for providing the state and its laws with legitimacy. It was, and is, considered by many a guarantor of liberty, in the absence of which power cannot be legitimately exercised.

However, both democratic legitimacy and the separation of powers as concepts have very much evolved alongside the state and over the last decades the state has been giving up ground to other power holders. This brings up the question of whether the combination of these concepts is still viable outside a traditional state context, and if so, in what form? This is the central question the current volume seeks to answer.’

See for the full text:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2194851.

See for order information:

http://www.lup.nl/product/the-powers-that-be/;

http://press.uchicago.edu/ucp/books/book/distributed/P/bo25134025.html.

Paper presentation, ‘Multiple Sovereignties and the Principle of Separation of Powers’, IXth World Congress of Constitutional Law, University of Oslo (2014)

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About the Congress:

‘The IACL holds a World Congress every 3-4 years. The IXth Congress will take place in Oslo from 16 to 20 June 2014 and is organised by the Department of Public Law at the University of Oslo in collaboration with the Executive Committee of the IACL. The venue for the Congress is the historic Main Building of the University of Oslo, which is in the centre of the city.
The Congress will take place just one month after the 200th anniversary of the Norwegian Constitution which today stands as the second-oldest written Constitution in the world. It is expected that between 300 and 500 participants will attend the Congress, from all regions of the world.
The working languages of the Congress are French and English and simultaneous translation will be provided in plenary sessions.
The IACL uses two principal formats for the scholarly programme of a World Congress: plenary sessions and workshops. Plenary sessions are open to all participants while workshops are smaller and discussion-based. There will be four plenary sessions in this Congress, each of which lasts for 3½ hours.’

About the workshop during which the paper was presented (‘The mutations and transformation of division of powers: the constitutional organization’):

‘The classical characteristics of the Legislative and Executive Powers, which have scarcely changed since the origins of liberal constitutionalism (XVIIIXIX), are no longer adequate concepts or theoretical devices for explaining constitutional reality.

Every division of powers rests on the willingness of a constitutional assembly to divide the power with the purpose of avoiding the abuse of power and tyranny. The search for a system of checks and balances is then based on a liberal conception of political power. Therefore the main instrument to realize this balanced frame is to organize a moderate and representative government as was defended by Montesquieu and other authors; a limited power – they thought – should exclude arbitrariness and despotism.

But it becomes necessary to maintain two essential ingredients of the spirit of division of powers: the efficiency of this frame of government and the limitation of powers itself. The first ensures the supreme and general interest of a community; the second guarantees the fundamental rights and private interests of individuals. Thus both requirements must condition the development of the political society that every Constitution leads.

The issue of division of powers is however, nowadays, clearly renewed, because not only do the Executive and the Legislative powers play a main role within constitutional organization, but also those two classical powers have been submitted to strong transformations. Besides, modern constitutional provisions have created many new organs and powers, taking into account new circumstances and techniques.

On one hand, the judiciary power has affirmed itself step by step as a counter power of political and representative power. On the other hand, there are other powers with a diverse nature and quite different from those organized by the constitution:

the economic and financial powers,
international organizations which can be founded on different bedrocks,
lobbies which represent the interest of different groups in a society or even
collective and minority interests (religions, languages, costumes, regional or national identities), or
media powers.
These entities do not belong to the democratic and representative circuit provided inside constitutions. Those new realities and scenarios should probably be present in the philosophy of the contemporary constitutional organization. We must also underline the existence of supranational organizations, in particular in Europe and Latin America, as well as their intense impact on the transformation of the domestic division of power within the States.’

For sources and additional information, see:

http://www.iacl-aidc.org/en/events/previous-events/103-oslo-congress-oslo-congress-16-20-june-2014;

http://www.jus.uio.no/english/research/news-and-events/events/conferences/2014/wccl-cmdc/wccl/program/workshops/workshop15.html.

[At my request, my own paper was removed from the list of ‘accepted papers’ for copyright purposes.]

Co-editor and co-author, volume The Powers That Be. Rethinking the Separation of Powers. A Leiden Response to Möllers (2015)

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‘Both democratic legitimacy and the separation of powers as concepts have very much evolved alongside the state and over the last decades the state has been giving up ground to other power holders, particularly international (and even supranational) actors. This brings up the question of whether the combination of these concepts is still viable outside a traditional state context, and if so, in what form? This is the central question the current volume seeks to answer.

In 2013 Christoph Möllers published his impressive monograph, The Three Branches; A Comparative Model of Separation of Powers. This inspirational book led to the idea to pitch it against both the agenda of us as researchers of the Institute of Public Law at Leiden Law School (resulting from a 2012 conference) and our own insights, as well as that of fellow travellers in the field.’

For more (order) information, see:

http://www.lup.nl/product/the-powers-that-be/;

https://www.bol.com/nl/p/the-powers-that-be/9200000054866659/;

http://www.amazon.co.uk/powers-that-rethinking-separation/dp/9087282516/ref=sr_1_1?ie=UTF8&qid=1454938145&sr=8-1&keywords=The+Powers+That+Be+Rethinking+the+Separation+of+Powers.

 

Contribution to volume on ‘Rethinking Europe’s Constitution’ (2007)

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‘The beginnings of this book go back to 2003 when the editor asked the contributors and several others to participate in an expert meeting on the Draft Treaty establishing a Constitution for Europe, which at that time had just been made public. Subsequently, all went to work and towards the end of 2004 most participants at the meeting had completed their contribution to the book. During the editing process, however, something happened which nobody – least of all the editor – had taken into consideration. In May and June 2005 – as we all know – the French and Dutch people rejected the Draft Treaty in a referendum, thus bringing the constitutional process to a sudden standstill.

The editor asked the contributors to revise their papers in such a manner that they would also answer the question:
• What should be the basic legal framework of institutions of the European Union in the near and not-so-near future? In other words: what would be essential constitutional elements of a modified Treaty establishing a Constitution for Europe? (Never mind whether it will be called a ‘Constitution’ or not.)

The result is the book you are holding in your hands. We hope that it will be of some use in thinking through the question that should be – but is not – on everyone’s mind because it is a question of invaluable importance for the future of Europe: What should become of the European Union?

All in all, you will find here a collection of eleven essays on various aspects of that question. For clarity’s sake, the essays are divided into four parts.
Part I is about what many constitutions, including the Draft Treaty, start with: the preamble. More specifically, it is about the issue, heavily contended in the recent discussion on the Draft Treaty, whether the preamble should contain any references to God or religion. Paul Cliteur’s essay on God and Religion in the Preamble of Constitutions starts off this book with a thorough discussion of this issue and defends a laicist constitution, radically separating state and church.

Part II comprises four essays, which, from very different perspectives, deal with the overall constitutional structure of the European Union. In his paper United we stand, divided we fall, a Case for the United States of Europe, Andreas Kinneging makes a case – as the title already leads us to suspect – for a United States of Europe, along the lines of the case made by the American Founding Fathers for a strong United States of America. Likewise, in his essay Europe of the 21st Century and the Fears and Formulae of the 18th and 19th Century, Paul De Hert also pleads for the creation of an American style federal state in Europe, but for very different reasons. He is mainly concerned with balancing the powers of the Union and of the national governments, in order to ensure the liberty of the individual. From this same perspective he also discusses and criticizes the Charter of Fundamental Rights. In the third contribution to the second part, in a paper entitled Pluralism and European Unification, Hans-Martien ten Napel explores what a pluralist Christian vision of a good European constitution looks like, and assesses the extent to which the Draft Treaty is consistent with this vision. He concludes that the demands of pluralism are insufficiently honoured. Sophie van Bijsterveld’s essay on Governance in the EU: Democratic Equality and the Separation of Powers concludes the second part. It looks at the developments in the European Union from the point of view of two principles which are also central to the US Constitution: the separation of powers and democracy, with regard to both formal and informal governance of Europe.

Part III subsequently singles out the principle of democracy for further discussion. Everybody knows that, traditionally, the democratic image of the decision-making processes in the European Union and its predecessors is rather questionable. Perhaps in order to counter that image, the framers of the Draft Treaty devoted a number of articles (44-51) explicitly to ‘The democratic life of the Union’. The question is of course whether this questionable image is justified to begin with, and if so, whether constitutional changes along the lines of the Draft Treaty would improve the situation and make the European Union more democratic. The two essays included in part III are rather pessimistic on both regards. In a paper aptly named The Aristocratic Surplus, Armin Cuyver gives an overview of the lack of democracy in the institutions of the European Union. In The Democratic Life in Europolis, Paul Nieuwenburg then follows up with a critique of the above-mentioned articles of the Draft Treaty, which he argues to be muddled and shallow.

Finally, in part IV, four authors discuss different aspects of the governance of the European Union. In his paper The Coming of Age of the European Legislator, Wim Voermans examines the various issues pertaining to the legislative power in Europe. He contends that, contrary to what is often believed, the European Parliament is now a full-blown legislative power, comparable to the national parliaments. In his contribution The President of the European Council as the Servant of the United States of Europe, John Sap focuses on the executive power. Carla Zoethout and Rick Lawson round off the book with essays on the position of the European Court of Justice and its case law. In her paper The Court and the Charter of Fundamental Rights, Zoethout focuses on the question how the European Court should interpret the Charter of Fundamental Rights. And in his paper In Search of Polaris: which Rights for the European Union, Lawson asks which human-rights standards the European Court should apply and how they should be applied.’

My own contribution is entitled: ‘Pluralism and European Unification’.  You can download it here: https://openaccess.leidenuniv.nl/bitstream/handle/1887/12437/Pluralism+and+European+Unification.pdf?sequence=4.

Order information of the volume as a whole:

http://www.wolfpublishers.com/book.php?id=282;

http://www.amazon.com/Rethinking-Europes-Constitution-Andreas-Kinneging/dp/9058502619.