Constitutional and Administrative Law

Public law has been conceived in many different ways, sometimes overlapping, often conflicting. However, in recent years a common theme running through the discussions of public law is one of loss. What function and future can public law have in this rapidly transforming landscape, where globalized states and supranational institutions have ever-increasing importance? This book takes stock of the idea, concepts, and values of public law as it has developed alongside the growth of the modern state, and assesses its continued usefulness as a distinct area of legal inquiry and normativity in light of various historical trends and contemporary pressures affecting the global configuration of law in general. Divided into three parts, the first provides a conceptual, philosophical, and historical understanding of the nature of public law, the nature of private law, and the relationship between the public, the private, and the concept of law. The second part focuses on the domains, values, and functions of public law in contemporary (state) legal practice, as seen, in part, through its relationship with private domains, values, and functions. The final part engages with the new legal scholarship on global transformation, analysing the changes in public law at the national level, including the new forms of interpenetration of public and private in the market state, as well as exploring the ubiquitous use of public law values and concepts beyond the state.

This book seeks to fill a void in the representation of South Asian constitutions and constitutionalism in international discourse. Although parts of South Asia have remained obscure and unstable on the fine balance of constitutional stability and constitutionalism, an appreciable number of countries have successfully operated constitutional schemes that are based on systems developed in the West through a process of trial and error. In this volume, an array of experts studies the successes and failures of constitutionalism in this extremely diverse region. Their well-researched essays address diverse and crucial issues affecting South Asian constitutionalism with a view to bringing this subject to the centre-stage of constitutional discourse globally, as well as within the South Asian region. A comparative study of the processes of framing, interpretation, and application of constitutional principles of countries like Afghanistan, Bangladesh, Bhutan, India, the Maldives, Myanmar, Nepal, Pakistan, and Sri Lanka are included. Given that those involved in these processes resort to transnational ‘borrowing’, an analysis of such borrowings is also presented. The essays provide deep insights into the historical, political, legislative, and judicial evolution of constitutionalism in South Asian countries.

Since Nepal was created as a nation, its constitutional history has been inextricably linked to the tortuous process of democratization and the efforts to create a more equitable and inclusive polity. A specific segment of Nepal's constitutional trajectory is the 1990 constitutional experience. This book investigates the relationship between constitutional nationalism and patterns of legal exclusion during the 1990 constitutional experience of Nepal, focusing on the institutional management of socio-cultural diversity by the state in the context of post-Cold War re-democratization and the outcome of such strategy. The ‘unity in diversity’ approach embraced by Nepali state actors resulted in growing discontent among many social groups since 1990 and strong opposition to the 1990 Constitution itself. This book examines the legacy of this institutional strategy and how it is intertwined with the enduring socio-political conflict that Nepal has had to deal with even after the abrogation of the 1990 document in January 2007. It assesses the path-dependent importance of sedimented institutional structures and their resilience to change and considers the connection between law and politics in processes of constitutional change. It demonstrates that the recent reconfiguration of law primarily as ‘right’ places great expectations on the emancipatory potential of law in redressing historical injustices and initiating political change by legal means.

Consociations are power-sharing arrangements, increasingly used to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts. Current examples include Belgium, Bosnia, Northern Ireland, Burundi, and Iraq. Despite their growing popularity, they have begun to be challenged before human rights courts as being incompatible with human rights norms, particularly equality and non-discrimination. This book examines the use of power-sharing agreements, their legitimacy, and their compatibility with human rights law. Key questions include to what extent, if any, consociations conflict with the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements. In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and then in Sejdic and Finci v Bosnia regarding the constitution established for Bosnia Herzegovina under the Dayton Agreement. The Court's decision in Sejdic and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in Belgium. This book accounts for this change and assesses its implications. The problematic aspects of the current state of law are demonstrated. Future negotiators in places riven by potential or actual bloody ethnic conflicts may now have less flexibility in reaching a workable settlement, which may unintentionally contribute to sustaining such conflicts and make it more likely that negotiators will consider excluding regional and international courts from reviewing these political settlements.

An analysis of the European Commission's general role in supervising member state compliance with EU law, this book provides a detailed assessment of centralized EU enforcement. It starts out by asking whether it is viable to establish stronger Commission powers of enforcement at this point in time. Against this backdrop, and as a means of exploring the role of the Commission, the chapters examine a number of different aspects pertaining to the enforcement of EU law. Beginning with an appraisal of the Commission's function under the general EU infringement procedure stipulated in Articles 258 and 260 TFEU, the volume argues that the EU lacks independent self-sustained regime authority. Moreover, this is reflected in both substantive EU law and procedural law, including the general EU infringement procedure. Chapter Two makes the case that Article 258 TFEU can usefully be explained in terms of managerialism. Chapter Three analyses Article 260 TFEU concerning repetitive infringements. In particular, it asserts, EU member state sanctions sustain the managerial approach. It then goes on to examine the Commission's unsuccessful attempts to gain sharper enforcement powers through secondary legislation, and identifies the effective points of functional overlap between enforcement powers and certain types of implementing tools. Finally, it discusses the Commission's role under various non-binding, ad hoc arrangements. The concluding chapter places the general EU infringement procedure in the broader context of a comprehensive (negotiated) policy process. It argues that the enforcement stage shares many features with earlier steps in the legislative process, including flexibility and deliberation.

European agencies have been created at a rapid pace in recent years in a multitude of highly pertinent and sensitive fields ranging from pharmaceuticals and aviation safety to chemicals or financial supervision. This agency phenomenon shows no signs of relenting, and the trend in recent years is towards the delegation of ever-broader powers. These bodies, meant to operate at arm's length from political control, have real power and their opinions and decisions can have a direct impact on individuals, regulators, and member states. Given the powers wielded by the agencies, who is responsible for holding these non-majoritarian actors to account? Is the growing concern surrounding agency accountability ‘much ado about nothing’ or are we faced with the threat of a powerful and unaccountable bureaucracy? These are precisely the questions that this book seeks to answer. It thus addresses one of the most relevant topics in current European governance: the accountability of European agencies. Scholars have increasingly called attention to the risk of placing too much power in the hands of such agencies, which operate at arm's length from traditional controls and cannot easily be held accountable for their actions. Although this is a major issue of concern, systematic empirical research into the topic is lacking. This book addresses empirically whether, and if so on what counts, agency accountability is problematic. It examines how the accountability system of European agencies operates at both the de jure as well as the de facto level, through an examination of legal provisions, relevant case law as well as policy documents and extensive interview material. Reflecting on these findings, the book also offers important theoretical insights for our understanding and study of accountability in a complex regulatory regime such as the EU context.

This book examines the constitutional relationship between Germany and the European Union from a sociological and historical perspective. Sociologically, it analyses the relationship not purely in shallow, doctrinal terms (e.g. by discussing the authority of the relevant provisions of the Basic Law—although an entire chapter is dedicated to substantive constitutional law and interpretation), but through a deeper, ‘cultural’ analysis that is generated by the triangular links between public law, scholarship, and case law. The utilization of ‘elite legal culture’ enables a thorough comparison of the two main Federal Constitutional Court decisions, Maastricht (1993) and Lisbon (2009), as well as a multi-layered discussion of the split in public law scholarship that either prioritizes the integrity of the state (Staatsrecht) or the integrity of the constitution (Verfassungsrecht). This split is discussed both internally (in relation to the interpretation of national constitutional law) and externally (in relation to the European Union), where another constitutional method emerges (Ius Publicum Europaeum). Historically, it traces the main public law concepts (state, constitution, sovereignty, democracy, Volk) to their modern emergence in the nineteenth century and discusses them as sites of contestation in the Weimar as well as in the Bonn Republics.

Since the end of the Second World War and the subsequent success of constitutional judicial review, one particular model of constitutional rights has had remarkable success, first in Europe and now globally. This global model of constitutional rights is characterised by an extremely broad approach to the scope of rights (sometimes referred to as ‘rights inflation’), the acceptance of horizontal effect of rights, positive obligations and increasingly also socio-economic rights, and the use of the doctrines of balancing and proportionality to determine the permissible limitations of rights. Drawing on analyses of a broad range of cases from the U.K., the European Court of Human Rights, Germany, Canada, the U.S., and South Africa, this book provides the first substantive moral, reconstructive theory of the global model. It shows that it is based on a coherent conception of constitutional rights which connects to attractive accounts of judicial review, democracy and the separation of powers. The first part of the book develops a theory of the scope of rights under the global model. It defends the idea of a general right to personal autonomy, that is, a right to everything which, according to the agent's self-conception, is in his or her interest. The function of this right is to acknowledge that every act by a public authority which places a burden on a person's autonomy requires justification. The second part of the book provides a theory of the structure of this justification by proposing original and useful accounts of the important doctrines of balancing and proportionality.

The United States Circuit Courts of Appeals are among the most important governmental institutions in our society. However, because the Supreme Court can hear less than 150 cases per year, the Circuit Courts (with a combined caseload of over 60,000) are, for practical purposes, the courts of last resort for all but a tiny fraction of federal court litigation. Thus, their significance, both for ultimate dispute resolution and for the formation and application of federal law, cannot be overstated. Yet, in the last forty years, a dramatic increase in caseload and a systemic resistance to an increased judgeship have led to a crisis. Signed published opinions form only a small percentage of dispositions; judges confer on fifty routine cases in an afternoon; and most litigants are denied oral argument completely. This book chronicles the transformation of the United States Circuit Courts; considers the merits and dangers of continued truncating procedures; catalogues and responds to the array of specious arguments against increasing the size of the judiciary; and considers several ways of reorganizing the circuit courts so that they can dispense traditional high quality appellate justice even as their caseloads and the number of appellate judgeships increase.

Is legislative intent a fiction? The legislative assembly is a large, diverse group rather than a single person and it seems a mystery how the intentions of the individual legislators might somehow add up to a coherent, complex group intention. This book elucidates the nature of legislative intent, arguing that in enacting a statute the well-formed legislature forms and acts on a detailed intention, which is the legislative intent. The foundation of the argument is an analysis of how the members of purposive groups act together by way of common plans, sometimes forming complex group agents. The book extends this analysis to the legislature, considering what it is to legislate and how members of the assembly cooperate to legislate. It argues that to legislate is to choose to change the law for some reason: the well-formed legislature has the capacity to consider what should be done and to act to that end. This argument is supported by reflection on the centrality of intention to the nature of language use. The book then explains in detail how members of the assembly form and act on joint intentions, which do not reduce to the intentions of each member, before outlining some implications of this account for the practice of statutory interpretation.