Whatever works: proportionality as a constitutional doctrine

In The Global Model of Constitutional Rights Kai Möller claims that the proportionality test is underlain by an expansive moral right to autonomy. This putative right protects everything that advances one’s self-conception. It may of course be limited when balanced against other considerations such as the rights of others. But it always creates a duty on the state to justify the limitation. Möller further contends that the practice of proportionality can best be understood as protecting the right to autonomy. This review article summarizes the main tenets of Möller’s theory and criticizes them on two counts. First, it disputes the existence of a general right to autonomy; such a right places an unacceptably heavy burden on others. Second, it argues that we do not need to invoke a right to autonomy to explain and justify the main features of the practice of proportionality. Like other constitutional doctrines, proportionality is defensible, if it is grounded in pragmatic –mainly epistemic and institutional- considerations about how to increase overall rights compliance. These considerations are independent of any substantive theory of rights.

After the referendum: options for a constitutional convention

Whatever the result of Scotland’s independence referendum, careful constitutional thinking will be needed. If Scots vote Yes, Scotland will need a new constitution and the rest of the UK will have to rethink its governing structures. Even in the event of a No vote, everyone agrees that the shape of the Union will need to change over the coming years. This paper examines how such constitution-making should take place. It sets out the options, gathers evidence from around the world on how those options might work, and weighs the advantages and disadvantages of each alternative. It concludes that constitutional proposals in the UK should best be developed by a convention comprising a mixture of ordinary members of the public and politicians; these proposals should be put to a referendum. This approach, the paper argues, offers the best route to high-quality debate, stronger democratic engagement, and, ultimately, deeper legitimacy for our governing structures.

Second Strike and you are (finally) out? The Quashing of the Prevention of Infiltration Law (Amendment no. 4)

The blog-post critically analyses the Israeli Supreme Court judgment (HCJ 8425/13 Anon v. Knesset et al) quashing the Prevention of Infiltration Law (Amendment no. 4), offering themes of comparative constitutional interest.

Shared authority: courts and legislatures in legal theory

This book advances a fresh philosophical account of the relationship between the legislature and courts, opposing the common conception of law, in which it is legislatures that primarily create the law, and courts that primarily apply it. This conception has eclectic affinities with legal positivism, and although it may have been a helpful intellectual tool in the past, it now increasingly generates more problems than it solves. For this reason, the author argues, legal philosophers are better off abandoning it. At the same time they are asked to dismantle the philosophical and doctrinal infrastructure that has been based on it and which has been hitherto largely unquestioned. In its place the book offers an alternative framework for understanding the role of courts and the legislature; a framework which is distinctly anti-positivist and which builds on Ronald Dworkin’s interpretive theory of law. But, contrary to Dworkin, it insists that legal duty is sensitive to the position one occupies in the project of governing; legal interpretation is not the solitary task of one super-judge, but a collaborative task structured by principles of institutional morality such as separation of powers which impose a moral duty on participants to respect each other's contributions. Moreover this collaborative task will often involve citizens taking an active role in their interaction with the law.

The Golden Age returns: Virgil's fourth Eclogue in the political panegyric of the Italian courts

E. H. Gombrich and others have analysed the uses made of language and imagery from Virgil's famous fourth Eclogue in panegyrical writing by partisans of the Medici dynasty in Florence. This study examines the appropriation of the theme of the returning Golden Age and related motifs from the fourth Eclogue in other Italian courts during the same period, by supporters of the Visconti and Sforza of Milan, the Gonzaga of Mantua, Leonello d'Este and his successors in Ferrara, and the Bentivoglio of Bologna, among others. The deployment of this Virgilian material in political panegyric is seen to be a central element in the self-definition and self-promotion of dynastic rulers throughout the peninsula.