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Jus Cogens : A Critical Journal of Philosophy of Law and Politics
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  Hybrid Journal Hybrid journal (It can contain Open Access articles)
ISSN (Print) 2524-3977 - ISSN (Online) 2524-3985
Published by Springer-Verlag Homepage  [2467 journals]
  • Courts and COVID-19: an Assessment of Countries Dealing with Democratic
           Erosion

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      Abstract: Abstract This article aims to present four case studies of the different responses to governmental measures to fight the COVID-19 pandemic by supreme and constitutional courts, especially in cases of jurisdictions that have been facing democratic erosion. The spread of the COVID-19 pandemic demanded immediate public policies and other political decisions from the branches of government. Executive authorities were the main actors in effecting constitutional public health norms. The expectation was that they will abide by the rule of law in fulfilling their duties; that has not been the case under governments that promoted democratic erosion. The different contexts of the threats posed to the constitutional democracies led populist and illiberal leaders to opportunistically either try to—and then be contained by courts—or effectively consolidate the expansion of powers under the conditions of the pandemic. Concentrating on four jurisdictions (the USA, Hungary, El Salvador, and Brazil), the article demonstrates that courts can effectively work as bulwarks against waves of democratic erosion, especially in situations of stress, as it was the case in the global COVID-19 pandemic. This hypothesis is also proven by episodes in which courts did not sufficiently operate to curb illiberalism because they were already captured. The analyses enable classifying the court’s responses to the COVID-19 executive measures in a threefold pattern: deferential, restrictive, and of forced capitulation.
      PubDate: 2023-01-16
       
  • The Pandemic and Constitutionalism

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      Abstract: Abstract The paper discusses the reactions of different political and constitutional systems reactions to the pandemic and also the impact of COVID to populism, constitutionalism, and autocracy. Beyond the choice between economic and health considerations also applied in liberal democratic countries, which have lead either to “under-” or “overreaction” to the pandemic, certain illiberal regimes used the crisis situation as a pretext to strengthen the autocratic character of their systems. In some cases, this needed an “underreach,” like in Poland to insist on the presidential election, which has been important to entrench the power of the governing party’s incumbent, elsewhere “overreach,” like in Hungary, where an unlimited emergency power of government has been introduced after the very first cases of contagion. These autocratic “overreactions” have breached the formerly used authoritarian legalistic approaches by openly violating their own illiberal constitutions. New “conservative” theories on “common good constitutionalism” emerged to legitimize the necessity of authoritative rule by the executive power. The paper concludes that one possibility to overcome authoritarian populism and restore constitutionalism in crisis situation such as the COVID-19 pandemic would be to rely on the involvement of the well informed public, one that is capable to understand and assess the advice of the meritocratic elite. This kind of participation would also help build up a constitutional culture necessary to preserve the values of constitutionalism.
      PubDate: 2022-11-17
       
  • ‘Constitutionalism and Covid-19: Broadening the Lens’ with Jus
           Cogens

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      PubDate: 2022-10-17
      DOI: 10.1007/s42439-022-00067-4
       
  • Reply to Critics: Poscher and Eleftheriadis

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      Abstract: Abstract In this piece I reply to comments on my book, The Mechanics of Claims and Permissible Killing in War, by Ralf Poscher and Pavlos Eleftheriadis. Poscher points out that my discussion of rights gave short shrift to the notion of dignity; my reply here gives me the welcome opportunity to correct that oversight. Eleftheriadis dissects my methodology, trying to shoehorn my theory into an existing category; my reply here gives me an opportunity to clarify why it is not just a variation on a familiar theme, but in fact, it represents a new approach to rights.
      PubDate: 2022-10-17
      DOI: 10.1007/s42439-022-00068-3
       
  • Neo-Orthodoxy in the Morality of War

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      Abstract: Abstract In recent decades, revisionist philosophers have radically challenged the orthodox just war theory championed by Michael Walzer in the 1970s. This review considers two new contributions to the debate, Benbaji and Statman’s War by Agreement and Ripstein’s Kant and the Law of War, which aim to defend the traditional war convention against the revisionist attack. The review investigates the two books’ respective contractarian and Kantian foundations for the war convention, their contrast with the revisionist challenge, and their points of disagreement. Building on the responses to Ripstein in the edited collection, The Public Uses of Coercion and Force, and providing an overview of the broader debate, the review offers an analysis of the two books’ positions on the relationship between the morality and laws of war, on just cause and the crime of aggression, and on the equality between just and unjust combatants.
      PubDate: 2022-10-01
       
  • To Surrender or to Fight On' A Human Rights Perspective on
           Self-Defense

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      Abstract: Abstract The traditional international law of self-defense provides little indication about how far states should be willing to defend. That choice is better understood as constrained, beyond the jus in bello and the jus ad bellum, by human rights norms that implicate responsibilities of the sovereign vis-à-vis its own population. Different conceptions of human rights, however, underscore different possible theories of the extent of self-defense. The main polarity is between a conception of self-defense as protecting bare life and a conception of self-defense as protecting collective self-determination. In the practice of justifying particular uses of self-defense, these foundations are constantly and dynamically rearticulated to justify fighting on, surrendering, or negotiating. This raises questions about the impact of conditions of uncertainty, different conceptions of agency, and the role of the international community. Ultimately, the article suggests that self-defense radicalizes anxieties about the foundation and finality of rights.
      PubDate: 2022-08-09
      DOI: 10.1007/s42439-022-00066-5
       
  • To Derogate or to Restrict' The COVID-19 Pandemic, Proportionality and
           the Justificatory Gap in European Human Rights Law

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      Abstract: Abstract In this paper, I offer an analytical and normative framework to re-visit the question of whether state parties should derogate from the European Convention on Human Rights (ECHR) in order to combat the COVID-19 pandemic via harsh ‘lockdown’ measures. It is three-pronged. First, I show that the predominant debate on the (non-)derogation question is informed by a textual approach to adjudication, which severely limits the analytical and evaluative horizon for addressing the issue. Most importantly, it cannot address one salient fact about the effects of lockdown measures, namely their highly disproportionate effects on vulnerable groups and minorities. Second, I argue that proportionality assessment should be the basis for determining whether state parties ought to derogate or not. This is because proportionality’s very purpose is in part to track the effects of state interferences on minorities and vulnerable groups by measuring the disproportionate burden imposed on them. It is also because proportionality assessment has very different requirements between limitation clauses built into the relevant Convention articles (e.g. Article 5, Articles 8–11) and the derogation clause (Article 15) under the ECHR. Surprisingly, while the emerging literature almost always mentions proportionality as an important component of the analysis, it does not investigate the extent to which each regime (derogation or limitation) better performs it, and why. Third, I draw from the philosophical literature on the ‘right to justification’ to clarify the egalitarian and justificatory function of proportionality. Unlike derogation, limitation clauses have a much higher and systematic requirement of justification, which makes the case for non-derogation clearer and stronger.
      PubDate: 2022-07-12
      DOI: 10.1007/s42439-022-00065-6
       
  • Toward a Dignity-Based Account of International law

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      Abstract: Abstract Once limited to issues in maritime and trade law, today, the most recognizable examples of international law govern issues such as human rights, intellectual property, crimes against humanity, and international armed conflicts. In many ways, this proliferation has been a welcomed development. However, when coupled with international law’s decentralized structure, this rapid proliferation has also posed problems for how we (and in particular judges) identify if, when, and where international law exists. This article puts forward a novel, dignity-based account for how we answer this question: arguing that an international law exists if and only if it is consistent with respecting dignity. The upshot of this account is twofold. First, it explains many features of international law that other theories leave unaccounted for or under-explained. And second, my dignity-based account provides for a mechanism through which the system can continue to be developed and improved.
      PubDate: 2022-07-04
      DOI: 10.1007/s42439-022-00063-8
       
  • Emergency Powers, Constitutional (Self-)Restraint and Judicial Politics:
           the Turkish Constitutional Court During the COVID-19 Pandemic

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      Abstract: Abstract This paper investigates the Turkish Constitutional Court (TCC)’s treatment of legal challenges brought against Turkey’s legal responses to the COVID-19 pandemic. Drawing on a detailed examination of the TCC’s institutional features, political origins and jurisprudential trajectory, and taking three politically salient judgments of the TCC concerning Turkey’s executive-dominated pandemic control as the point of departure, the paper argues that the TCC chose to exercise judicial restraint both in protecting fundamental rights and reviewing pandemic policies of the executive. It also argues that the TCC’s judicial restraint during the pandemic was simply the re-manifestation of its ‘play-it-safe’ strategy — a judicial stance the TCC willingly adopted in the aftermath of the 2016 attempted coup despite possessing strong constitutional powers of judicial review, and its established attitude of assertive scrutiny in the past. From a more theoretical perspective, the analysis also explores how the passive role to which the TCC is consigned in an increasingly authoritarian regime since the 2016 failed coup relates to the global phenomenon of judicialization of authoritarian politics.
      PubDate: 2022-07-04
      DOI: 10.1007/s42439-022-00064-7
       
  • Judicializing Schmitt’s “Legality and Legitimacy”

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      Abstract: Abstract In the Preussen contra Reich case of 1932, Carl Schmitt’s theories on equal chance and law in extreme conditions are interpreted and applied in a court of law, firstly by Schmitt himself, then, going contrary to Schmitt’s interpretation, by Dr. Arnold Brecht and Dr. Hans Peters. This paper will first present the basis of the two theories from Schmitt’s “Legality and Legitimacy,” namely, equal chance and the need for extraordinary measures. Then this paper will focus on the diverging legal interpretations of these two theories, as presented in court by different legal theorists. These divergent interpretations of “equal chance” and “law in extreme conditions,” as presented in the aforementioned case, have yet to reach an international readership, as the case itself has never been fully translated into English. Finally, this paper will question the practical application of the two theories in the reality of the empirical world, which in turn question the relationship between any parliamentary legislative system and law.
      PubDate: 2022-06-01
      DOI: 10.1007/s42439-022-00062-9
       
  • The End of Globalization: Cosmopolitanism, Militancy, and the Promises of
           Jus Cogens

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      PubDate: 2022-05-10
      DOI: 10.1007/s42439-022-00061-w
       
  • What Is Wrong with Solidarity in EU Asylum and Migration Law'

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      Abstract: Abstract In this article, we explore why solidarity has not worked according to expectation in EU migration and asylum law and why it is unlikely to work in the future. First, we consider discourses of burden-sharing and solidarity in EU law from the 1990s up to the Lisbon Treaty in 2009 to identify emergent path dependencies. This period saw the introduction of primary law provisions on solidarity, such as Article 80 TFEU, as French and Dutch electorates had rejected a European constitution. Second, we perform an analysis of Article 80 through the conceptual history of solidarity, in particular, the dominant Roman law tradition of obligation in solidum and the French tradition of solidarism. We submit that the term ‘solidarity’ is actually a misnomer: already on structural grounds, Article 80 should be read as an alliance clause, countering a threat of irregular immigration. Third, we find that the practice under Article 80 as it develops during the period between 2015 and the 2020 European Commission Pact on Migration and Asylum corroborates this finding. Overall, we find that the concept of solidarity in EU asylum and migration law engenders outcome expectations that it cannot deliver as the defence alliance it is.
      PubDate: 2022-05-04
      DOI: 10.1007/s42439-022-00059-4
       
  • The Force of Law' Transparency of Scientific Advice in Times of
           Covid-19

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      Abstract: Abstract Freedom of Information Acts (FOIA) are valuable legal tools to access information held by public authorities but during the first wave of the Covid-19 pandemic time frames to reply to requests were de jure or de facto suspended in many countries. However, the lack of effective legal tools to achieve transparency was not automatically paired with governmental secrecy. This research paper analyses which are the factors that prompted some governments to move from secrecy to transparency while the essential legal tool to achieve disclosure of information was not available. It focuses on the role of ‘ecologies of transparency’, a concept developed by Seth Kreimer to describe how FOIA needs to be understood as functioning within a collection of factors and actors. Yet, can transparency ecologies still force disclosure of information when FOIA is suspended' Research focuses on a comparative case study about transparency of scientific committees advising governments on Covid-19 in the UK and in Spain. In both countries, members and minutes were initially secret, but the British government published information before being forced by FOIA, while the Spanish executive only released partial information when FOIA was reactivated. The paper argues that information disclosure processes can be understood as supply and demand models. On the demand side, it highlights the role of adversarial press, scientific community, whistle-blowers, the opposition and critics within the governing party as decisive factors within the transparency ecology. On the supply side, it focuses on legitimation needs from the government to explain different outcomes.
      PubDate: 2022-04-25
      DOI: 10.1007/s42439-022-00060-x
       
  • Choices and Contexts in India’s Constitutional Founding

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      Abstract: Abstract ‘India’s founding moment’ a moment of breath-taking political imagination and it is one of the great achievements of Madhav Khosla. to unpack important parts of its pre-history and emergence. This article will look at two questions—one about alternatives and the other about contexts. Regarding alternatives, I am interested in the paths not taken and an understanding of possibilities. I try to get a sense of possible alternative futures or modernities that the founding generation pondered, in the best case allowing us to wonder what we can learn from the choices made as well as from the paths rejected. The other question I raise is the question of the intellectual contexts, in which the founding took place. Coming from a non-Indian perspective, I am interested in the entanglements, the contexts and potentially migrating ideas that emerge.
      PubDate: 2022-02-21
      DOI: 10.1007/s42439-021-00051-4
       
  • Constituting India

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      Abstract: Abstract Even though revolutions are central to the history of modern constitutionalism, some revolutions have invited more attention than others. This essay, a response to a symposium on India’s Founding Moment, underlines the significance of India’s constitutional founding and highlights ways in which India’s founders sought to create and develop democracy in a land where its supposed ingredients did not exist. The essay then turns to contemporary politics and considers the possibilities and limitations of the constitutional framework to address the current concerns over democratic backsliding in India.
      PubDate: 2022-02-02
      DOI: 10.1007/s42439-022-00056-7
       
  • Customary Norms, General Principles of International Environmental Law,
           and Assisted Migration as a Tool for Biodiversity Adaptation to Climate
           Change

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      Abstract: Abstract Assisted migration (AM) is a translocation of the representatives of species to areas outside their natural habitats as a response to climate change. This article seeks to identify how customary norms and general principles of international environmental law could guide the development of regulation of AM maximizing the benefits of using AM and minimizing AM-related risks. Among the customary norms and principles of international environmental law discussed in the article and relevant to the regulation of AM are the permanent sovereignty over natural resources, the principle of cooperation, the no-harm rule, the precautionary principle, the principles of prevention, due diligence, and obligation to conduct environmental impact assessment (EIA), the principles of integration and intergenerational equity, common but differentiated responsibilities, and the polluter pays principle, the principles of non-regression, progression, resilience, in dubio pro natura, the principle of ecological proportionality, and the principle of access to information, public participation, and access to justice in environmental matters (principle of good governance, environmental democracy).
      PubDate: 2022-01-24
      DOI: 10.1007/s42439-022-00055-8
       
  • Rights in the Balance

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      Abstract: Abstract Professor Walen’s book rejects the familiar argument of “double effect,” namely the doctrine that an action that knowingly causes the death of another person cannot be justified merely by its good consequences but only by its good intentions. Professor Walen offers a rival argument. He proposes that we rethink the killing of non-combatants in war on the basis of a theory of “the mechanics of claims” so that the intentional killing of civilians may be occasionally permissible. Such targeting of civilians may be justified, according to the book’s argument, by the aim of eliminating the threat that these civilians may pose—innocently or not—to other persons. In these circumstances, it will not only be permissible, but it would also be a matter of right to kill civilians, which would be derived from a balancing of “claims.” The argument is impressively made but is ultimately unconvincing. All the decisive questions appear to be matters of a balance of “goodness.” The “mechanics of claims” organizes a structure of welfare values that ultimately work as a proxy for act-utilitarianism. As a result, the argument is open to well-known objections regarding justice and the separateness of persons.
      PubDate: 2022-01-12
      DOI: 10.1007/s42439-021-00050-5
       
  • A Suitable Paradigm: the Indian Founding and the world

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      Abstract: Abstract What is the relevance of the Indian case for South Africa' And what should South Africans, and the rest of the world, make of the claim in Madhav Khosla’s India’s Founding Moment that we should recognize India as ‘the’ paradigm case for modern constitutional democracy' The constitutional projects of India and South Africa are naturally connected, but Khosla’s book helps to bring out what is perhaps the most important of the connections. Both are founded on an insistently democratic constitutionalism, in places where most inhabitants had long been told they were not suited or ready for democracy. Both display the conviction that boldly giving the vote to all, in these circumstances, is a powerful way to construct a democracy. This idea is crucial for understanding many aspects of both constitutions. This makes India a natural paradigm case for South Africa and many others. The stronger claim, that it is ‘the’ paradigm case and should succeed the United States to this status, can become more complicated once one tests it out globally (like the US claim). Finland and Ireland are especially strong and earlier examples of what Khosla sees as ground-breaking in India. Latin America’s somewhat different post-colonial trajectory makes India a more imperfect paradigm there. But that said, treating India and its founding as paradigmatic may well be the single best step to take for a more balanced view of the constitutional world, and this book’s elegant erudition makes it a real scholarly pleasure to do so.
      PubDate: 2022-01-12
      DOI: 10.1007/s42439-021-00053-2
       
  • Democracy, Constitutionalism, Modernity, Globalisation

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      Abstract: Abstract This essay is a contribution to a symposium on Madhav Khosla’s important book, India’s Founding Moment. It uses the book to reflect on the relevance of the story of the Indian founding to constitution making around the world in the twenty-first century. It explores this question through three themes that run through the book: people and process; the substance of constitutions; and global influences. In conclusion, I suggest that the principal value of the Indian example lies in its emphasis on the development of a democratic people through the principles and processes for which a democratic constitution provides. The direct applicability of the Indian example should not be overstated, however. In matters of important detail, it was necessarily anchored in the particularities of the Indian case, including the nature of the societal divisions as they had evolved under colonial rule, attracting substantive constitutional solutions that would not necessarily be applicable elsewhere. The world of constitution making has moved in in 70 years, moreover, as might be expected. Many of the challenges for constitution making now reflect both the possibilities and the pathologies of post-modernity, to which the Indian founding provides at best a general guide.
      PubDate: 2021-12-02
      DOI: 10.1007/s42439-021-00048-z
       
  • Human Dignity in the Mechanics of Claims

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      Abstract: Abstract The mechanics of claims focusses predominantly on the claim to life. The claim to life is rooted in the autonomy principle, just like other specific claims. Still, the mechanics of claims does not have a systematic place for the fundamental negation of the status as an autonomous being as such. It is, however, the proctiction of the status as such, which is at the center of the protection of human dignity in German constitutional law. Looked at it from this perspective, the protection of human dignity as the protection of the status of an autonomous human being, appears to be a blind spot of the mechanics of claims. The comment attempts to show, how this blindspot leads to inconsistencies in the mechanics of claims, and how they might be ameliorated if human dignity is considered as an absolute right independent of the claims to life.
      PubDate: 2021-11-29
      DOI: 10.1007/s42439-021-00047-0
       
 
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