Blog of the IACL, AIDC

a network of constitutionalists from countries throughout the world

New Titles from Hart Publishing: 20% discount for IACL Blog readers

Permanent States of Emergency and the Rule of Law

Constitutions in an Age of Crisis

Alan Greene

Screen Shot 2018-04-26 at 12.06.54 pmPermanent States of Emergency and the Rule of Law explores the impact that oxymoronic ‘permanent’ states of emergency have on the validity and effectiveness of constitutional norms and, ultimately, constituent power. It challenges the idea that many constitutional orders are facing permanent states of emergency due to the ‘objective nature’ of threats facing modern states today, arguing instead that the nature of a threat depends upon the subjective assessment of the decision-maker. In light of this, it further argues that robust judicial scrutiny and review of these decisions is required to ensure that the temporariness of the emergency is a legal question and that the validity of constitutional norms is not undermined by their perpetual suspension. It does this by way of a narrower conception of the rule of law than standard accounts in favour of judicial review of emergency powers in the literature, which tend to be based on the normative value of human rights. In so doing it seeks to refute the fundamental constitutional challenge posed by Carl Schmitt: that all state power cannot be constrained by law.

Alan Greene is an Assistant Professor in Law at Durham University.

April 2018   |   9781509906154   |   256pp   |   Hardback   |    RSP: £65   

Discount Price: £52

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The Constitution of the Environmental Emergency

Jocelyn Stacey

This book argues for a reframing of environmental law. It starts from the premise that all Screen Shot 2018-04-26 at 12.07.28 pmenvironmental issues confront lawmakers as emergencies. Environmental issues pose a fundamental challenge to law because it is impossible to reliably predict which issues contain the possibility of an emergency and what to do in response to such an unforeseen event. These features undermine the conventional understanding of the rule of law. This book argues that approaching environmental issues from the emergency perspective leads us to an understanding of the rule of law that requires public justification. This requirement recentres the debates in environmental law around the question of why governance under the rule of law is something worth having in the environmental context. It elaborates what the rule of law requires of decision-makers in light of our ever-present vulnerability to catastrophic environmental harm. Controversial, compelling and above all timely, this book presents an important new perspective on environmental law.

Jocelyn Stacey is Assistant Professor at the Peter A. Allard School of Law at the University of British Columbia.

April 2018   |   9781509920273   |   296pp   |   Hardback   |    RSP: £65   

Discount Price: £52

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The Unity of Public Law?

Doctrinal, Theoretical and Comparative Perspectives

Edited by Mark Elliott, Jason NE Varuhas and Shona Wilson Stark

Screen Shot 2018-04-26 at 12.08.06 pmThis major collection contains selected papers from the second Public Law Conference, an international conference hosted by the University of Cambridge in September 2016. The collection includes contributions by leading academics and judges from across the common law world, including senior judges from Australia, Canada, New Zealand and the UK. The contributions engage with the theme of unity (and disunity) from a number of perspectives, offering a rich panoply of insights into public law which significantly carry forward public law thinking across common law jurisdictions, setting the agenda for future research and legal development. Part 1 of the volume contains chapters which offer doctrinal and theoretical perspectives. Some chapters seek to articulate a unifying framework for understanding public law, while others seek to demonstrate the plurality of public law through the method of legal taxonomy. A number of chapters analyse whether different fields such as human rights and administrative law are merging, with others considering specific unifying themes or concepts in public law. The chapters in Part 2 offer comparative perspectives, charting and analysing convergence and divergence across common law systems. Specific topics include standing, proportionality, human rights, remedies, use of foreign precedents, legal transplants, and disunity and unity among subnational jurisdictions. The collection will be of great interest to those working in public law.

Mark Elliott is Professor of Public Law at the University of Cambridge, and Fellow of St Catherine’s College, Cambridge.

Jason NE Varuhas is Associate Professor at the University of Melbourne.

Shona Wilson Stark is Affiliated Lecturer at the Law Faculty at the University of Cambridge, and a Fellow of Christ’s College, Cambridge.

April 2018   |   9781509915187   |   472pp   |   Hardback   |    RSP: £85   

Discount Price: £68

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Constitutional Rights and Constitutional Design

Moral and Empirical Reasoning in Judicial Review

Paul Yowell

Screen Shot 2018-04-26 at 12.08.47 pmThe decisions courts make in constitutional rights cases pervade our political life and touch on our most basic interests and values. The spread of judicial review of legislation around the world means that courts are increasingly called on to settle matters of moral and political controversy, including assisted suicide, data privacy, anti-terrorism measures, marriage, and abortion. But doubts regarding the institutional capacities of courts for deciding such questions are growing. Judges now regularly review social science research to assess whether a law will effectively achieve its aim, and at what cost to other interests. They cite studies and statistical information from psychology, sociology, medicine, and other disciplines in which they are rarely trained. This empirical reasoning proceeds alongside open-ended moral reasoning, with judges employing terms such as equality, liberty, and autonomy, then determining what these require in concrete circumstances. This book shows that courts were not designed for this kind of moral and empirical reasoning. It argues that in comparison to legislatures, the institutional capacities of courts are deficient. Legislatures are better equipped than courts for deliberating and decision-making in regard to the kinds of factual and moral issues that arise in constitutional rights cases. The book concludes by considering the implications of comparative institutional capacity for constitutional design. Is a system of judicial review of legislation something that constitutional framers should choose to adopt? If so, in what form? For countries with systems of judicial review, practical proposals are made to remedy deficiencies in the institutional capacities of courts.

Paul Yowell is Associate Professor of Law at the University of Oxford, and Fellow and Tutor in Law at Oriel College, Oxford.

April 2018   |   9781509913596   |   186pp   |   Hardback   |    RSP: £60   

Discount Price: £48

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This entry was posted on April 26, 2018 by in Uncategorized.
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